1 938 Supplement

To

Mason's Minnesota Statutes 1927

(1927 to 1938) (Superseding Mason's 1 93 1, 1 934, and 1 936 Supplements)

Containing the text of the acts of the 1929, 1931, 1933, 1935, and 1937 General Sessions, and the 1933-34, 1935-36, 1936, and 1937 Special Sessions of the Legislature, both new and

amendatory, and notes showing repeals, together with annotations from the J various courts, state and federal, and the opinions of the Attorney

General, construing the constitution, statutes, charters 'and court rules of Minnesota together with digest

of all common law decisions.

Edited by

WILLIAM H. MASON, Editor-in-Chief W. H. MASON, JR. R. O. MASON J. S. O'BRIEN H. STANLEY HANSON R. O. MASON, JR.

- Assistant Editors

MASON PUBLISHING CO. SAINT PAUL, MINNESOTA

1938

CH. 91—CONTEMPTS §9810

not const i tut ing perjury, was a contempt of court. U. S. v. Clark (DC-Minn), lFSupp747. Aff'd 61F(2d)695, 289

•US1, 53SCR465. A witness before a grand jury may not refuse to

answer questions because they have not been ruled upon by the court or because they seem to relate only to an offense, the prosecution of which is barred by a s ta tu te of limitation. 177M200, 224NW838.

The doctrine of double jeopardy has no application in proceedings to punish for contempt, and each suc­ceeding refusal to answer the same questions will ordin­ari ly be a new offense. 177M200, 224NW838.

A defendant who refuses to testify or answer proper questions in a hear ing before a referee in proceedings supplementary to execution, is guilty of constructive contempt, and repeated evasions and unt rue answers amount to a refusal to answer. 178M158, 226NW188.

A judgment directed a corporation to file dismissals of cross-actions in a foreign state. I t did not authorize a requirement tha t they be dismissed with prejudice. 181M559, 233NW58G. See Dun. Dig. 1705.

Order in contempt against one who had obtained prop­er ty in proceeding supplementary to execution and had failed to re turn property as required by order of court after reversal on appeal, held improvidently made. Proper v. P., 3 88M15, 246NW481. See Dun. Dig. 1702, 3548.

Where debtor's automobile "was seized and taken to creditor's garage, and garage company assigned its claim to its president, who commenced action, making garage garnishee, there was an abuse of process requiring dis­missal of garnishment. Wood v. B., 199M208, 271NW447. See Dun. Dig. 7837.

Publications tending to interfere with the administra­tion of justice. 15MinnLawRev442.

(3.) One failing to replace lateral support as required by

judgment held guil ty of constructive contempt. Johnson v. F., 196M81, 264NW232. See Dun. Dig. 1702.

"Violation of an injunction is punishable as a contempt of court. Id. See Dun. Dig. 4504.

(7). Evidence held not to war ran t finding- tha t defendant

was guil ty of constructive contempt in a t tempt ing to procure witnesses to testify falsely. State v. Binder, 190 M305, 251NW665. See Dun. Dig. 1705.

9794 . Power to punish—Limitat ion. Wri t issued to lower court only when tha t court is

exceeding its jurisdiction. 173M623, 217NW494. Defendant in divorce in contempt of court in failing

to obey order for payment of temporary alimony, is not for t ha t reason deprived of the r ight of defense. 173M 165, 216NW940.

Punishment for constructive contempt is limited to a fine of $50.00, unless a r ight or remedy of a par ty was defeated or prejudiced, but this does not prevent the court from enforcing payment of the fine by imprison­ment. 178M158, 226NW188.

9 7 9 5 . Summarily punished, when. When object of a proceeding in contempt is to Impose

punishment merely, order adjudging contempt is re­viewable on certiorari , but when object is to enforce doing of something in aid of a civil proceeding, order of contempt is reviewable on appeal. Proper v. P., 188M15, 246NW481. See Dun. Dig. 1395, 1702 to 1708a.

9796 . Arrest—Order to show cause, etc. Information for contempt by a juror in willfully con­

cealing her interest in a criminal prosecution, as a re ­sul t of which she was accepted as a juror, held suf­ficient. U. S. v. Clark, (DC-Minn), lFSupp747. Aff'd 61F (2d)695, 289US1, 53SCR465.

9798 . Admiss ion to bail. Where wa r r an t does not s ta te whether or not person

shall be admitted to bail and defendant is before court, court has jurisdiction. State v. Binder, 190M305, 251NW 665, overruling Papke v. Papke, 30 Minn. 260, 262, 15NW 117. See Dun. Dig. 1706.

9 8 0 1 . Hearing. In cases of str ict ly criminal contempt, rules of law

and evidence applied in criminal cases must be observed, and defendant's guilt must be established beyond a rea­sonable doubt. State v. Binder, 19OM305, 251NW665. See Dun. Dig. 1705.

9802. Penalties for contempt of court.—Upon the evidence so taken, the court or officer shall determine the guilt or innocence of the person proceeded against, and, if he Is adjudged guilty of the contempt charged, he shall be punished by a fine of not more than $250.00, or by Imprisonment in the county jail, workhouse or work farm for not more than six months, or by both. But in case of his inability to pay the fine or endure the imprisonment, he may be relieved by the court or officer in such manner and upon such terms as may be just. (R. L. '05, §4648; G. S. '13, §8363; Apr. 15, 1933, c. 267.)

Contempt is not a "crime" within §9934, and, in view of §9802, punishment can only be by imprisonment in county jail and not in a workhouse. 175M57, 220NW414.

9803 . Indemnity to injured party. Postnuptial agreements properly made between hus­

band and wife after a separation, are not contrary to public policy, but the part ies cannot, by a postnuptial agreement, oust the court of jurisdiction to award ali­mony or to punish for contempt a failure to comply with the judgment, though it followed the agreement. 178M 75, 226NW211.

Fines for contempt as indemnity to a par ty in an ac­tion. 16MinnLawRev791.

9804 . Imprisonment until performance. A proceeding to coerce payment of money Is for a

civil contempt. Imprisonment cannot be imposed on one who is unable to pay. 173M100, 216NW606.

Payment of alimony and at torney 's fees. 178M75, 226 NW701.

A lawful judicial command to a corporation Is in ef­fect a command to its officers, who may be punished for contempt for disobedience to its terms. 181M559, 233NW 586. See Dun. Dig. 1708.

Fa ther of a bastard cannot be punished for contempt in not obeying an order to save money which it is not in his power to obey. State v. Strong, 192M420, 256NW 900. See Dun. Dig. 850, 1703.

One failing to replace lateral support as required by judgment held guil ty of constructive contempt. John­son v. F., 196M81, 264NW232. See "Dun. Dig. 1702.

Habeas corpus is not to be used as subst i tute for an appeal or wr i t of error, and therefore cannot be used to determine whether or not there was an erroneous deci­sion of issue whether relator was or was not able to pay alimony supporting order of imprisonment for contempt. State v. Gibbons, 199M445, 271NW873. See Dun. Dig. 4129.

9807. Hearing. I t is not agains t public policy to receive testimony of

jurors in a proceeding for contempt of one of the jurors in obtaining her acceptance on the ju ry by willful con­cealment of her interest in the case. U. S. v. Clark, (DC-Minn), !FSupp747. Aff'd 61F(2d)695, aff'd 289US1, 53SCR465.

. CHAPTER 92

Witnesses and Evidence W I T N E S S E S

9808 . Definition. Testimony on former tr ial admissible where witness

absent from state. 171M216, 213NW902. Whether collateral mat ters may be proved to discredit

a witness is within the discretion of the tr ial court. 171 M515, 213NW923.

The foundation for expert testimony is largely a mat­ter within the discretion of the tr ial court. Dumbeck v. C , 177M261, 225NW111.

Where a witness is able to . testify to the mater ial facts from his own recollection, it is not prejudicial er­ror to refuse to permit him to refer to a memorandum in order to refresh hi3 memory. Bullock v. N., 182M192, 233NW858. See Dun. State v. Novak, 181M504, 233NW 309. See Dun. Dig. 10344a.

There was no violation of the parol evidence rule in admit t ing testimony to identify the par ty with whom defendant contracted, the wri t ten contract being am­biguous and uncertain. Drabeck v. W., 182M217, 234NW 6. See Dun. Dig. 3368.

After pr ima facie proof tha t the person who nego­tiated the contract the defendant signed was the agent of plaintiff, evidence of such person's declarations or s ta tements during the negotiation was admissible. Dra­beck v. W., 182M217, 234NW6. See Dun. Dig. 3393.

Let ter wr i t ten by expert witness contrary to his tes t i ­mony, held admissible. Jensen v. M., 185M284, 240NW 656. See Dun. Dig. 3343.

9 8 0 9 . Subpoena, by whom issued. Power of t r ial judge to summon witnesses. 15Minn

LawRev350.

9810 . How serred. A subpoena issued by Senate investigation committee

sent to person for whom it is intended by registered mail is of no effect. Op. Atty. Gen., Apr. 12, 1933.

Subpoena to appear before senate committee must be served by an individual and one sent by registered mail is without effect. Op. Atty. Gen., Apr. 12, 1933.

Secretary of conservation commission could not be required by subpoena to produce all of his correspond-

1217

§9814 CH. 92—WITNESSES AND EVIDENCE

ence with certain official before committee of senate making investigation. Id.

9814 . E x a m i n a t i o n of c l e rgyman re s t r i c t ed in cer­t a i n cases.—EWery person of sufficient u n d e r s t a n d i n g , inc luding a pa r ty , may testify in any act ion or proceed­ing, civil or c r imina l , in cou r t or before any person who h a s a u t h o r i t y to receive evidence, except as fol­lows :

3. A c l e rgyman or o the r min i s te r of any re l ig ion shal l not , w i t h o u t t h e consent of t h e p a r t y m a k i n g t h e confession, be a l lowed to disclose a confession m a d e to h im in h i s profess ional cha rac t e r , in t h e course of discipline enjoined by the ru les or prac t ice of t he re l ig ious body to which h e be longs . Nor shal l a c l e rgyman or o t h e r min i s t e r of any re l ig ion be examined as to any communica t ion m a d e to, h i m by any person seeking re l ig ious or sp i r i tua l advice, aid or comfor t or h is advice given the reon in t he course of his profess ional cha rac t e r , w i t h o u t t he consent of such person . (Act Apr. 18, 1 9 3 1 , c. 206, §1.)

%. In general . , A justified disbelief in the testimony of a witness

does not justify a finding of a fact to the contrary wi th­out evidence in its support. State v. Novak, 181M504, 2S3NW309. See Dun. Dig. 10344a.

The court did not err in excluding the opinon of plain­tiff's expert as to values. Carl Lindquist & Carlson, Inc., v. J., 182M529. 235NW267. See Dun. Dig. 3322.

Owner's opinion of the value of his house as it would have been if plaintiff's work had been properly done, was admissible. Carl Lindquist & Carlson, Inc., v. J., 182M529, 235NW267. See Dun. Dig. 3322(4).

There was no error in permit t ing the mother of the three-year-old child who was injured to testify as to the indications the child gave of injury a t the t ime of the accident, nor as to the duration of its disability. Ball v. G., 185M105. 240NW100. See Dun. Dig. 3232.

"Whether nurse operat ing hospital could testify as to her observations of a pat ient made independently of her work with doctor, discussed. State v. Voges, 197M85, 266 NW2G5.

1. All persons not excepted competent. Except when essential to ends of justice, a lawyer

should avoid testifying in court in behalf of his client. Fe r ra ro v. T., 197M5, 265NW829. See Dun. Dig. 10306a.

In bastardy proceedings wherein there was no excep­tion or objection to charge, court did not err in submit­t ing case to jury in absence of proof tha t child was born alive or was still living, and no proof tha t defendant was not husband of complaining witness, since it is not con­ceivable tha t defendant would not a t tempt to deceive s ta te by set t ing forth his r ights under §§8579, 9814(1). State v. Van Guilder, 199M214, 271NW473. See Dun. Dig. 840.

3. Subdivision 1. Not applicable in action by wife to set aside convey­

ance obtained by fraud of husband. 173M51, 216NW 311.

Prohibition of this subdivision applies in actions for alienation of affections. 175M414, 221NW639.

Plaintiff in action for alienation or criminal conversa­tion could not testify to admissions made to him by his deceased wife concerning meretricious relations with defendant, though defendant requested him to ask his wife about the. mat ter . 177M577, 226NW195.

Husband and wife are competent to give evidence tha t the former is not the father of a child of the wife conceived before the dissolution of the marr iage by di­vorce. State v. Soyka, 181M502, 233NW300. See Dun. Dig. 10312.

Defendant by calling his wife as a witness waived his privilege. State v. Stearns, 184M452, 238NW895. See Dun. Dig. 10312(59).

Wife cannot be examined as a witness for or against her husband without his consent. Albrecht v. P., 192M 557, 257NW377. See Dun. Dig. 10312.

4. Subdivision 2. Volunteering information on the witness stand. 171M

492, 214NW666. On application to share in grandfather ' s - es ta te on

ground of unintentional omission from will, communica­tions between tes ta tor and a t torney who drew will were not privileged. 177M169, 225N.W109.

Communications by a tes ta tor to a t torney draft ing his will are not privileged in l i t igation over es ta te between persons, all of whom claim under testator . Hanefeld v. F., 191M547, 254NW821. See Dun. Dig. 10313.

4%. Subdivision 3. For a confession to a clergyman to be privileged it

must be penitential in character and made to him in his professional character as such clergyman in confi­dence while seeking religious or spiritual advice, aid, or comfort, but the court cannot require the disclosure of the confess ion ' to determine if it is privileged. In re Swenson, 183M602, 237NW589. See Dun. Dig. 10314.

Statement of the witness held not given by way of confession or in obtaining spir i tual comfort or conso­lation and was not privileged. Christensen v. P., 189M 548. 250NW363. See Dun. Dig. 10314a.

Privilege of confidential communications made to clergyman. 16MinnLawRevl05.

5. Subdivision 4. 180M205, 230NW648. In action on life insurance policy, test imony of dieti­

t ian who had directed diet of insured, held admissible. F i r s t Trus t Co. v. K., (TJSCCA8), 79F(2d)48.

Information acquired by a physician in a t tempt ing to revive a patient, and opinions based thereon, are within protection of section, a l though pat ient may have been dead when such a t tempts were made. Palmer v. O., 187 M272, 245NW146. See Dun. Dig. 10314.

A doctor may testify tha t he has been consulted but he may not agains t objection disclose any information which he obtained a t such consultation. Stone v. S., 189M 47, 248NW285. See Dun. Dig. 10314.

Admission in evidence of privileged communication to physicians was immaterial where other test imony re ­quired a directed verdict. Sorenson v. N., 195M298, 262 NW868. See Dun. Dig. 10314.

Communications between superintendent of s ta te hos­pital and patient are privileged. Op. Atty. Gen.. May 9, 1933.

0. Subdivision 5. Commercial Union Ins. Co. v. C , 183M1, 235NW634.

See Dun. Dig. 10315(20). Court properly sustained objection to question asked

prosecuting at torney with respect to a disclosure made to him by an accomplice of accused who testified against defendant, though proper foundation was laid for im­peachment. 172M106. 214NW782.

City clerk may withhold from public inspection let­ters and papers which are not a par t of regular files and records prescribed or required to be kept by law, or consist of communications made to city clerk or other official in official confidence and public interest would suffer by their inspection or disclosure. Op. Atty. Gen., Oct. 26, 1933.

Confidential information given to child welfare board should be classed as privilege and its disclosure would be contrary to public interest. Op. Atty. Gen., Dec. 29, 1933.

Public records of a municipality are open to inspection by any citizen of the s tate . Op. Atty. Gen. (59a-6), Apr. 27, 1934.

Subject to this subdivision records of s ta te department of education and of public schools are open to any tax­payer. Op. Atty. Gen. (8511), Apr. 2, 1935.

Records of Seed Inspection Division a re open to in­spection by any one having a legit imate interest there­in. Op. Atty. Gen. (136e), July 29, 1936.

9815. Accused. 1. In general . Allusion to fact tha t defendant did not take stand was

harmless in view of s t rong evidence of guilt. State v. Zemple, 196M159, 264NW587. See Dun. Dig. 10307.

Prosecuting a t torney cannot comment on failure of de­fendant to testify. State v. Bean, 199M16, 270NW918. See Dun. Dig. 10307.

2. Cross-examination of accused. Statement of defendant in cross-examination tha t he

never robbed anybody does not put his general char­acter in issue. 181M566, 233NW307. See Dun. Dig. 2468.

There was no error in cross-examination of defendant because it tended to subject him to prejudice on account of his associations and earlier career. State v. Quinn, 186M242, 243NW70.

A defendant in a criminal case, who is a witness in his own behalf, may be crossTexamined upon collateral mat te rs to affect his credibility and to discredit him, and to some-extent s ta te may inquire into his past life, and extent of the cross-examination is largely within dis­cretion of t r ial court. State v. McTague, 190M449, 252 NW446. See Dun. Dig. 10307, 10309.

9816 . E x a m i n a t i o n by ad v e r s e p a r t y . 1. Object and effect of s ta tu te . The record does not show tha t appellant had any

ground for complaint because of the ruling of court denying him the r ight to cross-examine his co-defend­an t while the la t te r was still on the stand after cross-examination under the s ta tu te by respondent 's at torney, Lund v. O., 182M204, 234NW310. See Dun. Dig. 10327.

2. Who may be called. In action agains t railroad there was no error in per­

mit t ing a district master car builder to be called by. plaintiff for cross-examination, even though not occu­pying the same position as a t the t ime the cause of action arose. 175M197, 220NW602.

In a proceeding for discipline and disbarment of an attorney, he may be called for cross-examination under the s ta tu te . In re Halvorson, 175M520, 221NW907.

Defendant in default of an answer could be called un­der the s ta tu te . 176M108, 222NW676.

A rai lway section foreman held properly called for cross-examination in action agains t railroad. 176M331, 223NW605.

1218

CH. 9 2 — W I T N E S S E S AND EVIDENCE §9819-1

Attorney involved in transaction, but not a party, held improperly called under this section. 180M104, '230NW 277.

In action agains t owner of truck, it was not reversible error to permit driver of t ruck to be called for cross-examination under s ta tute . Dudwig v. H., 137M315, 245 NW371. See Dun. Dig. 10327.

Where summons and complaint were properly served on a minor and he interposed an answer by his at torney before any guardian ad litem had been appointed for him and on day of tr ial a guardian ad litem was appointed, such defendant was an actual defendant a t the trial who could be called for cross-examination as an adverse party. Wagstrom v. J., 192M220, 255NW822. See Dun. Dig. 4454, .4462.

Even though a minor defendant were not a proper par ty defendant, it was not prejudicial error to per-mit him to be called for cross-examination under the s ta tute , as he could have been called as a witness for plaintiff and court would have permitted a cross-exami­nation irrespective of the s tatute . Id. See Dun. Dig: 422, 10327.

Defendant in bastardy proceeding may be called and examined. Op. Atty. Gen., Aug. 30, 1929.

3. In what actions or proceedings. A bastardy proceeding is a civil proceeding, not a

criminal action, and defendant may be called by prose­cution for cross-examination. State v. Jeffrey, 188M476, 247NW692. See Dun. Dig. 10327d.

4. Scope of examination. In action against driver of an automobile and his

alleged employer for injuries sustained in a collision, in which driver admitted alleged employment in his plead­ings, held it was improper to permit cross-examination of driver as an adverse par ty upon issue of employment. P. P. Collier & Son v. H. (USCCA8), 72P(2d)625. See Dun. Dig. 10327.

5. Contradiction and impeachment of witness. A par ty calling the adverse par ty under this section,

and failing to obtain the proof sought, held not entitled to favorable decision on assumption tha t the testimony given was false. 178M568, 227NW896.

9817 . Conversa t ion w i t h deceased o r i n sane person . ~*/z. In g e n e r a l . Whether testimony, objected to as conversation with

a person since deceased, was improperly admitted, was immaterial, where only conclusion possible under all other evidence in case was tha t industrial commission properly denied compensation. Anderson v. R., 196M358, 267NW501. See Dun. Dig. 10316.

1. Who Incompetent. ;

175M549, 221NW908. In action to enjoin bar r ing of r ight of way claimed

by prescription-, defendant and her children had such an interest in the subject-matter that they could not testify as to conversations between plaintiff and their deceased husband and father regarding the r ight of way. 171M358, 214NW49.

Plaintiff in action for alienation or criminal conversa­tion could not testify to admissions made to him by his deceased wife concerning meretricious relations with defendant, though defendant requested him to ask his wife about t he matter . 177M577, 226NW195.

In action by wife alone to enjoin foreclosure of mort­gage executed by husband and wife and cancel note and mortgage for fraud, husband could testify as to a conversation with a person since deceased. 178M452, 227 NW501.

New debtor ar is ing by novation was competent to testify to conversation with deceased creditor. 180M 75, 230NW468.

Statements made by an injured person, since deceased, to a par ty or person interested in the outcome of the action, are inadmissible in evidence, and such statements are not rendered admissible in evidence by the fact tha t they are par t of the res gestae, or excepted from the hearsay rule, or classed as verbal acts. Dougherty v. G., 184M436, 239NW153; note under §9657. See Dun. Dig. 10316.

One financially interested in result of law suit may not testify to conversations between deceased and other party. Cohoon v. L,., 188M429, 247NW520. See Dun. Dig. 10316b.

l b . Heirs. A beneficiary under a., will may give conversations with

the tes ta tor for the purpose of laying foundation to tes­tify as to the testator 's mental condition. 177M226, 225 NW102.

Declarations of a deceased g ran to r are not admis­sible in an action by his heirs to set aside the deed be­cause of the alleged undue influence and duress used by the grantee in its procurement; such declarations not being agains t the interest of the grantor . Reek v. R., 184M532, 239NW599. See Dun. Dig. 10316.

l c . Conversations between deceased and third persons. Does not exclude testimony of husband of grand­

daughter and heir as to conversations with decedent. 181M217, 232NW1. See Dun. Dig. 10316.

Court r ightly refused to s t r ike as incompetent tes t i ­mony of a witness not financially Interested in suit, tha t deceased admitted he had agreed to pay his son and

daughter for services they were rendering him. Hol­land v. M., 189M172, 248NW750. See Dun. Dig. 10316b.

Where so-called admission against interest of de­ceased person is not in respect to specific issue litigated, but ra ther indirectly or upon a collateral matter , evi­dence going to contradict or explain same should be ad­mitted. Bmpenger v. E., 194M219, 261NW185. See Dun. ' Dig. 3298.

Wives of men dealing with decedent were competent to testify as to conversation between husbands and de­ceased. Anderson v. A., 197M252, 266NW841. See Dun. Dig. 10316.

If. Acts and transact ions in general . As respecting gift of notes by decedent to plaintiff, •

lat ter could not testify that deceased handed notes properly endorsed to him and tha t he handed them back to decedent to take care of them for him. Quarfot v. S., 189M451, 249NW668. See Dun. Dig. 10316.

Where claimant introduced proof of s ta tements of de­ceased in respect to a collateral matter , not in na ture of a direct admission against interest upon lit igated issue, it was error to exclude other s ta tements of de­ceased to meet or explain the s ta tements introduced. Empenger v. E., 194M219, 259NW795. See Dun. Dig. 3237.

Conveyances made of par ts of farm on which parties lived, as one family, were properly received as having some tendency to show existence or nonexistence of a contract to will property to daughter- in- law for serv­ices rendered as claimed by claimant, but diaries of de­ceased containing no entries relative to any issue litigated were not admissible. Id. See Dun. Dig. 10207.

I t is desirable tha t court be liberal in receiving evi­dence of collateral mat te r tending to prove or disprove alleged contract upon which claim against decedent is • based, and while admissions against interest by deceased are admissible, self-serving s ta tements are not. Id. See Dun. Dig. 3408.

3. Wri t ten admissions and acts . Action on life insurance policy held not required to be

submitted to jury on ground evidence of decedent's fraudulent representation rested entirely on testimony of -survivor to transaction with decedent, as s ta tements of decedent were contained in application signed by him and attached to policy on which action was based F i r s t Trust Co. v. K., (TJSCCA8), 79F(2d) 48.

4. Conversation with whom. A conversation by an interested par ty with a third

party, if otherwise competent, is not incompetent because overheard by a par ty since deceased. Sievers v. S., 189M 576, 250NW574. See Dun. Dig. 10316.

Insured was necessarily a par t ic ipant in conversation result ing in contract t ha t if beneficiaries were not changed, named beneficiaries would give proceeds of pol­icy to plaintiffs. Id. See Dun. Dig. 10316.

5. Waiving objection by cross-examlnntion. Question to plaintiff by defendant's counsel, held not

to open the door so as to permit him to testify gen­erally as to conversations with deceased. 175M27, 220 NW154.

7. Waiver. Objection to competency of witness or evidence can­

not be first raised on motion for new trial or on ap­peal. 178M452, 227NW501.

9819—1. Witnesses in .criminal cases.—If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in.criminal actions in this state certifies under the seal of such court that there is a criminal action pending in such court, that a person being within this state is a material witness in such action, and that his presence will be required for a specified number of days at the trial of such ac­tion, upon presentation of such certificate to any judge of the district court of the county in which such person resides, or the county in which such person is found if not a resident of this state, such judge shall fix a time and place for a hearing and shall notify the witness of such time and place.

If at the hearing the judge determines that the witness is material and necessary, either for the pros­ecution or the defense in such criminal action, that it will not cause undue hardship to the witness to be compelled to attend and testify in the action in the other state, that the witness will no t ' be compelled to travel more than one thousand miles to reach the place of trial by the ordinary traveled route, and that the laws of the state in which the action is pending and of any other state through which the witness may be required to pass by ordinary course of travel will give to him protection from arrest and the service of civil and criminal process, he shall make an order, with a copy of the certificate attached, directing the witness to attend and testify in the court where the action is pending at a time and place specified in the certificate.

1219

§9819-2 CH. 9 2 — W I T N E S S E S AND E V I D E N C E

If t he wi tness , who is n a m e d in such o rde r as above provided af ter being paid or t ende red by some p rop­er ly au thor ized person the sum of ten cents a mile for each mile by t he o rd ina ry t rave led r o u t e to a n d from the cou r t w h e r e t h e act ion is pend ing and five dol la rs for each day t h a t he is r equ i r ed to t rave l and a t t e n d as a wi tness , fails w i t h o u t good cause to a t t e n d and test ify as d i rected by such order , he shal l b e gui l ty of cons t ruc t ive con tempt of cour t a n d sha l l be pun i shed accord ing to law. (Act Apr. 1 1 , 1935 , c. 140, §1.)

9819—2. Nonres iden t wi tnesses .—If a person, in any s t a t e , which by its laws has m a d e provision for com­m a n d i n g persons wi th in t h a t s t a t e to a t t e n d a n d test ify e i the r for t he prosecut ion or t he defense in c r imina l act ions in th is s t a t e , is a m a t e r i a l wi tness in an act ion pend ing in a d i s t r ic t cour t of th is s t a t e , a j u d g e of such cour t may issue a certificate u n d e r t he seal of t he cour t s t a t i ng these facts and specifying the n u m b e r of days t he wi tness will be requ i red . Th i s certificate shal l be p resen ted to a j u d g e of a c o u r t of record in t he county in which the wi tness res ides , or t he county in which he is found if no t a r e s iden t of t h a t s t a t e .

If t he wi tness is o rde red by the cour t to a t t e n d a n d testify in a c r imina l ac t ion in th is s t a t e h e shal l be t ende red the sum of t en cents a mile for each mi le by t he o rd ina ry t rave led rou t e to and from the cour t w h e r e t he act ion is pend ing and five dol lars for each day t h a t he is r equ i red to t rave l a n d a t t e n d as a wi tness . A wi tness w h o h a s appea red in accordance wi th the provis ions of t he order of the cour t shal l no t be requ i red to r e m a i n wi th in th i s s t a t e a longer per i ­od of t i m e t h a n the period men t ioned in t h e certifi­ca te . (Act Apr . 1 1 , 1935 , c. 140, §2.)

9819—3. Wi tnesses n o t t o b e sub jec t t o a r r e s t o r service of process .—If a person comes in to th i s s t a t e in obedience to a cour t o rde r d i rec t ing h im to a t t e n d a n d testify in a c r imina l ac t ion in th is s t a t e h e shal l no t , whi le in th i s s t a t e , p u r s u a n t to such cour t order , be subjec t to a r r e s t or t he service of process, civil or c r imina l , in connect ion wi th m a t t e r s which a rose be­fore his e n t r a n c e into th is s t a t e u n d e r such order .

If a person passes t h r o u g h th i s s t a t e wh i l e going to a n o t h e r s t a t e in obedience to a cour t o rder r equ i r ­ing h im to a t t end and testify in a c r imina l ac t ion in t h a t s t a t e or whi le r e t u r n i n g the re f rom, h e shal l not , wh i l e so pass ing t h r o u g h th i s s t a t e , be sub jec t to a r ­r e s t or t he service of process, civil or c r imina l , in connect ion wi th m a t t e r s which a rose before h i s en­t r ance in to th i s s t a t e p u r s u a n t to such cour t o rde r . (Act Apr. 11 , 1935 , c. 140, §3.)

9819—4. Interpretation of ac t .—This act shal l be so i n t e rp re t ed a n d cons t rued as to effectuate i ts gen­era l purpose to m a k e un i fo rm the law of t he s t a t e s which enac t it . (Act Apr . 1 1 , 1935, c. 140, §4.)

DEPOSITIONS 9832 . Informalities and defects—Motion to sup­

press. Suppression of deposition, held not prejudicial error.

181M217, 232NW1. See Dun. Dig. 422. Bond was sufficiently identified in deposition of ex­

pert witness on value to make his testimony admissible. Ebacher v. F., 188M268, 246NW903. See Dun. Dig. 2715.

P E R P E T U A T I O N OF TESTIMONY Act to provide for perpetuation of evidence of sales

of pledged property. Laws 1931, c. 329, ante, §8359-1.

JUDICIAL R E C O R D S — S T A T U T E S , ETC. 9 8 5 1 . Records of foreign courts. Authenticated copy of defendant's record of convic­

tion in another state, if under the same name, is prima facie evidence of identity. Op. Atty. Gen., Apr. 28, 1929.

9 8 5 3 . Printed copies of statutes, etc. Mason's Minnesota Statutes 1027 were made prima

facie evidence of the laws therein contained by Laws 1929, c. 6.

When a bill has passed both houses, is enrolled twice, and the enrolled bills are directly contradictory, in one particular, and it is necessary to determine which of

the two acts the legislature intended to enact, the court may examine the legislative journals to ascertain the facts. 172M306, 215NW221.

9855 . Statutes of other states. All tha t is necessary to authent icate a s ta te s ta tu te

to be used in evidence is to have a copy certified by the Secretary of State under the grea t seal of the State. Op. Atty. Gen., Dec. 11, 1931.

DOCUMENTARY EVIDENCE 9859 . Affidavit of publication. In action by adminis t ra tor to recover purchase price

of land, oral testimony offered to show tha t in the verb­al negotiations for the sale the land was described dif­ferently from the description in the deed, was properly rejected. Kehrer v. S., 182M596, 235NW386. See Dun. Dig. 3368(48).

9862 . Official records prima facie evidence—Certi­fied copies—etc.

Op. Atty. Gen., Apr. 14, 1932; note under §9880. A judgment or order, in proceedings for appointment

of a guardian of an incompetent person and t ak ing from such person the management of his property, is admissi­ble in evidence in any lit igation whatever, but not con­clusive, to prove tha t person's mental condition a t time order or judgment is made or a t any time dur ing which judgment finds person incompetent. Champ v. B., 197M 49, 266NW94. See Dun. Dig. 3348.

Certified copies of record of mor tgage foreclosure by advert isement in office of register of deeds are admis­sible in Iowa without complying with Mason's U. S. C. A., Title 28, §688. Bristow v. L., 266NW(Iowa)808.

Records of s ta te depar tment of education and of public schools are open to inspection by any taxpayer. Op. Atty. Gen. (8511), Apr. 2, 1935.

LOST INSTRUMENTS 9 8 7 1 . Proof of loss . Evidence to establish lost deed must be clear and con­

vincing. 181M45, 231NW414.

MISCELLANEOUS PROVISIONS 9876 . Account books—Loose-leaf sys tem, e t c . Entr ies or memoranda made by third part ies in the

regular course of business under circumstances calcu­lated to insure accurate and precluding any motive of misrepresentation, are admissible as prima facie evidence of the facts stated. I t is no longer an essential of admis­sibility " that the witness should be somehow unavai l­able." 174M558, 219NW905.

•A hospital char t was properly admitted as an exhibit. Lund v. O., 182M204, 234NW310. See Dun. Dig. 3357(95).

Corporate minute books held sufficiently identified by the testimony of one who was the auditor and a director of the corporation. Johnson v. B., 182M385, 234NW590. See Dun. Dig. 3345(16).

A let ter wr i t ten by one par ty to a contract, in con­firmation of it, in performance of an undisputed term calling for such a letter, accepted wi thout question and retained by the other party, held such an integrat ion of the agreement as to exclude parol evidence varying or contradict ing the wri t ing. Ras t v. B., -182M392, 235 NW372. See Dun. Dig. 3368.

Books of account regular ly and properly kept and maintained in one's business and identified to be books of original entries a re admissible, in evidence. Meyers v. B., 196M276, 264NW769. See Dun. Dig-. 3346.

Account books kept by wife even if considered books of defendant do not conclusively impeach his testimony so as to compel findings according to all entries therein. Pat terson v. R., 199M157, 271NW336. See Dun. Dig. 3345, 3410.

9877. Entries by a person deceased, admissible when.

This section adds nothing to admissibility but declares only what foundation shall be laid. 174M558, 219NW 905.

9880 . Minutes of conviction and judgment. In abatement proceedings in distr ict court, where one

has been convicted of violation of city liquor ordinance, certified copies of records of municipal court are admis­sible. Op. Atty. Gen., Apr. 14, 1932.

9884 . Certificate of conviction. Op. Atty. Gen., Apr. 14, 1932; note under §9880. 9886 . Inspectiqn of documents. An order g ran t ing or refusing inspection of books and

documents in hands or under control of an adverse par ty is not appealable. Melgaard, 187M632, 246NW478. See Dun. Dig. 296a, 298(49).

9887 . Bi l l s and notes .—Indorsement , etc. Promissory note could be introduced in evidence wi th­

out proof of s ignature. 176M254, 223NW142. Verified general denial is insufficient to require other

proof than the note itself. 180M279, 230NW785.

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CH. 9 2 — W I T N E S S E S AND EVIDENCE § 9 9 0 5 %

9892 . Federal census—Populat ion. Though ordinarily inmates of training- schools are not

to be counted as residents of county, county board should accept official re turns of federal or s tate census as basis for determining whether or not a redistr ict ing is re­quired, even though inmates of such schools were count­ed as residents. Op. Atty. Gen. (798d), Oct. 15, 1935.

9896 . Abs t rac t s of title to be received in evidence. Introduction in evidence of an abstract without incor­

porat ing in settled case instruments referred to in ab­stract , which are claimed to create a defect or break in chain of title, is not effective to prove a breach of a covenant of seizin in a deed. Baker v. R., 199M148, 271 NW241. See Dun. Dig. 344.

9899 . Fact of marriage, how proved. Oral or wri t ten admissions of other par ty tha t mar­

riage exists are admissible in evidence to show common-law marriage. Ghelin v. J., 186M405, 243NW443. See Dun. Dig. 5794(79).

Evidence of general repute or of cohabitation as mar­ried persons, or any other circumstantial or presumptive evidence from which facts may be inferred, was com­petent on question of common-law marriage. Welker 's Estate, 196M447, 265NW27.3. See Dun. Dig. 5794.

9902 . Confession, inadmissible when. If s ta tement of accused be considered as confession of

driving car while intoxicated, corroboration held suffi­cient. State v. Winberg, 196M135, 264NW578. See Dun. Dig. 2462.

9903 . Uncorroborated evidence of accomplice. Testimony of accomplices was sufficiently corroborated.

173M598, 218NWH7. Sufficiency of corroboration of accomplice. 176M175,

222NW906. Where it is in fact present, it is not error to instruct

tha t there is evidence to corroborate an accomplice. 176 M175, 222NW906.

A witness is an accomplice if he himself could be con­victed as a principal or accessory. One who gives a bribe is not an accomplice to the crime of receiving a bribe. 180M4B0, 231NW225.

Evidence held not to show tha t a witness was an ac­complice and the court properly refused to charge as to corroboration. 181M303, 232NW335. See Dun. Dig. 2457.

Submit t ing to the ju ry as a question of fact the ques­tion whether two witnesses for the s ta te were accom­plices held not error. State v. Leuzinger, 182M302, 234 NW308. See Dun. Dig. 2457(9).

Evidence corroborat ing testimony of accomplices held sufficient to support the conviction of bank officer for larceny. State v. Leuzinger, 182M302, 234NW308. See Dun. Dig. 2457(1).

In absence of request, instruction on necessity of cor­roboration of accomplice was properly omitted, under evidence. State v. Quinn, 186M242, 243NW70.

Evidence held not to show witnesses were accomplices. State v. Quinn, 186M242, 243NW70.

Testimony of accomplice held sufficiently corroborated connecting defendant with the crime of arson. State v. Padares, 187M622, 246NW369. See Dun. Dig. 2457.

Testimony of accomplice held sufficiently corroborated to sustain conviction of murder. State v. Jackson, 198M 111, 268NW924. See Dun. Dig. 2457.

9 9 0 4 . In prosecutions for l ibe l—Right of jury. Truth, a defense to libel. 16MinnLawRev43. 9905 . Divorce—Testimony of parties. Evidence held sufficient to establish willful desertion.

Graml v. G.. 184M324, 238NW683. See Dun. Dig. 2776. 9 9 0 5 % .

COMMON LAW DECISIONS RELATING TO W I T ­NESSES AND EVIDENCE IN G E N E R A L

1. Judicial notice. The courts recognize the fact tha t tuberculosis In its

incipient s tage is usually not an incurable malady. E g -gen v. U. S. (CCA8), 58P(2d)616.

I t is common knowledge tha t s tandard automobiles are held for sale by dealers for schedule prices, even when old or used cars are traded in. Baltrusch v. B., 183M470, 236NW924. See Dun. Dig. 3451.

I t is mat te r of common knowledge tha t a sterilization operation upon a male properly done in due course ef­fects sterilization. Christensen v. T., 190M123, 255NW620. See Dun. Dig. 3451.

Courts t ake judicial notice of topography of state. Erickson v. C, 190M433, 252NW219. See Dun. Dig. 3459.

I t is common knowledge tha t recuperative sources differ very much in individuals even of same age and outward appearance. Howard v. V., 191M245, 253NW766. See Dun. Dig. 3451.

The court judicially knows tha t mail would ordinarily be received a t Morris, Minn., one day after it was de­posited in St. Paul, Minn. Devenney's Estate , 192M265, 256NW104. See Dun. Dig. 3456.

District court may take judicial notice of author i ty of part icular municipal court. Untiedt v. V., 195M239, 262 NW568. See Dun. Dig. 3452.

Court cannot take judicial notice of practical construc­tion of city charter. State v. Goodrich, 195M644, 264NW 234. See Dun. Dig. 3452. I t is a mat ter or common knowledge tha t hazards are

created likely to.lead to disastrous results where a driver suddenly swerves out of his traffic lane a t a point where he has no opportunity of seeing what is approaching from other direction. Cosgrove v. M., 196M6, 2G4NW134. See Dun. Dig. 3451.

On appeal after second trial, evidence taken a t first which is no part of record a t second cannot be considered by judicial notice or otherwise. Taylor v. N., 196M22, 264NW139. See Dun. Dig. 3455.

I t is well known tha t a river often, either suddenly or gradually, varies its course and flows to a grea ter or lesser extent within river base or valley. Lamprey v. A., 197M112, 266NW434. See Dun. Dig. 3451.

I t is common knowledge that by reason of dry and hot summers, lakes in southern part of s ta te suffered grea t lowering of the water level during years prior to 1935. Meyers v. L., 197M241, 266NW861. See Dun. Dig. 3451.-

Court takes judicial notice of process of .distributing bottled milk a t retail. Frankl in Co-Op. Creamery Ass'n. v. E., 273NW809. See Dun. Dig. 3451.

I t is common knowledge tha t speed of s t reet cars is reduced on approaching s treet intersections. Geldert v. B., 274NW245. See Dun. Dig. 3451.

Court will not take judicial notice of health regula­tions. Op. Atty. Gen. (225b-4), May 21, 1935.

2. Presumptions and burden of proof. There is a presumption tha t death was not suicidal.

New York L. I. Co. v. A. (CCA8), 66F(2d)705. In action against city for flooding of basement, court-

properly charged tha t burden of proving tha t storm or cloud burs t was an act of God or vis major was upon the defendant. National Weeklies v. J., 183M150. 235 NW905. See Dun. Dig. 7043.

Consumer of bread discovering a dead larva in a slice, which she did not put in her mouth must prove the baker 's negligence, and court properly directed verdict

•for the defendant. Swenson v. P., 183M289. 236NW310. See Dun. Dig. 3782, 7044.

I t will be presumed tha t county officials proceeded to spread and collect taxes as was their duty under s ta tute , though record in suit does not so show. Republic I. & S. Co. v. B., 187M373, 245NW615. See Dun. Dig. 3435.

Absence of proof on a vital issue loses case for par ty having burden of proof on tha t issue, no mat ter how difficult or impossible it is to procure evidence on tha t par t icular point. McGerty v. N., 191M443, 254NW601. See Dun. Dig. 3469.

There is a presumption tha t public officers will con­form to the constitution. Moses v. O., 192M173, 255NW 617. See Dun. Dig. 3435.

In absence of evidence to contrary, presumption tha t let ter properly addressed and posted with proper postage affixed is received in due course controls. Devenney's Estate , 192M265, 256NW104. See Dun. Dig. 3445. .

Legislature is presumed to have acted with knowledge of all facts necessary to make an intelligent classifica­tion of persons and things. Board of Education v. B., 192M367, 256NW894. See Dun. Dig. 1677 to 1679.

A public official is entitled to presumption that in per­formance of his duties he acts in good faith according to his best judgment. Kingsley v. F., 192M468, 257NW 95. See Dun. Dig. 3435.

In action for death in elevator shaft to which there were no eye witnesses, sentence a t end of charge "with reference to the presumption of due care tha t accom­panied the plaintiff, the burden of overcoming that pre­sumption rests upon the defendant" held not prejudicial in view of accurate and more complete instruction In body of charge. Gross v. G.. 194M23, 259NW557. See Dun. Dig. 7032(99).

In action for death by falling into elevator shaft to which there was no eye witness, it is not absolutely necessary for plaintiff to prove precise manner in which deceased came to fall into pit, even if any of alleged negligent acts or omissions have been proven, which reasonably may be found to be cause of fall. Id. See Dun. Dig. 7043.

Presumption of due care by decedent yields to credible undisputed evidence. Paber v. H., 194M321, 260NW500. See Dun. Dig. 2616, 7032.

Circumstantial evidence may rebut presumption of due care of a deceased. Id. See Dun. Dig. 2616, 7032.

One who loses his life in an accident is presumed to have exercised due care for his own safety, but presump­tion may be overcome by ordinary means of proof tha t due care was not exercised. Oxborough v. M., 194M335, 260NW305. See Dun. Dig. 3431, 7032.

Guardian of insane insured person who escaped from insane asylum and disappeared cannot continue to re ­ceive disability benefits upon a mere presumption of con­tinuance of life and continuance of disability, but must show actual physical existence and continuing disability as required by policy. Opten v. P., 194M580. 261NW197. See Dun. Dig. 3438.

Doctrine of res ipsa loquitur does not apply in mal­practice case and opinion evidence of medical experts is necessary to make out a case. Yates v. G., 198M7, 268 NW670. See Dun. Dig. 3469.

Presumption of regular i ty on par t of public officers must necessarily prevail until there is some credible evi-

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§9905% CH. 92—WITNESSES AND EVIDENCE

dence to show failure in that regard. Judd v. C, 198M 590, 272NW577. See Dun. Dig. 3436.

One who purchases a municipal wa r r an t is charged with notice of law under and by vir tue of which such obligation is issued. Id, See Dun. Dig. 6718.

Those dealing with a municipal corporation in mat ter of public improvements are conclusively presumed to know extent of power and author i ty possessed by munic­ipal officers with whom they deal. Id.

Public business t ransacted on a legal holiday is legal in case of necessity, existence of which will be presumed in absence of a showing to contrary. Ingelson v. O., 199M422, 272NW270. See Dun. Dig. 3433, 3436, 9064.

Presumption is tha t services rendered by a child to a parent in home are gratui tous. Anderson's Estate , 199 M588, 273NW89. See Dun. Dig. 7307.

Distinction between risk of non-persuasion and duty of producing evidence. 15MinnLawRev600.

3. Death from absence. After seven years ' unexplained absence without tid­

ings, absentee is presumed to be no longer living, but there is no presumption tha t he died a t any part icular t ime dur ing seven years, and death a t an earlier date than expiration of period must be proved like any other fact by party asser t ing it. Carlson v. B., 188M43, 246NW 370. See Dun. Dig. 3434.

Where absentee's mari ta l relations were extremely un­happy, he was insolvent and a drunkard, and had an­nounced his intention of seeking employment elsewhere, Jury was not justified in finding death occurred prior to expiration of seven-year period. Id.

There is a rebut table common-law presumption tha t a person no longer lives who has disappeared and has not been heard from for a period of seven years, and in such a case burden is upon one who seeks to show death prior to expiration of seven-year period, and such a death must be shown by evidence tha t preponderates in favor of t ha t solution of the disappearance. Sherman v. M., 191M607, 255NWU3. See Dun. Dig. 3434.

In a disappearance case, circumstantial evidence may justify a finding of death prior to expiration of seven-year period even in absence of a showing tha t absentee was exposed to a specific peril a t time he was last heard from. ' Id. See Dun. Dig. 3434.

To give rise, to presumption of death after seven year 's unexplained absence, such absence must be from last usual place of abode or resort. White v. P., 193M263, 258 NW519. See Dun. Dig. 3434, 4844.

Under presumption of death after seven years unex­plained absence, there is no presumption as to specific time of death, and it is not filing of petition for admin­istrat ion or rendering of decree tha t fixes date of death as of any part icular time. Hokanson's Estate , 198M428, 270NW689. See Dun. Dig. 3434.

Presumption of death from seven years ' absence. 19 MlnnLawRev777.

4. Suppression of evidence. When a par ty fails to produce an available witness

who has knowledge of facts and whose test imony pre­sumably would be favorable to him, and fails to account for his absence, jury may indulge a presumption or draw an inference unfavorable to such party. M & M Securities Co. v. D., 190M57, 250NW801.- See Dun. Dig. 3444,

5. Admissibility in general . Circumstantial evidence is as competent in a personal

injury action as in any other. Sears, Roebuck & Co. v. P. (USCCA8), 76F(2d)243.

Evidence of violation of a s t a tu te or ordinance which has not been enacted for the protection of the injured person is immaterial. Mechler v. M., 184M476, 239NWG05. See Dun. Dig. 6976.

A witness for plaintiffs was not permitted to testify to declarations of the l iving grantor Impugning the grantees ' title, except insofar as sucli testimony refuted or impeached tha t given by such grantor . Reek v. R., 184M532, 239NW599. See Dun. Dig. 3417.

Testimony of incidents of dissatisfaction and animosity between grantors and grantees months and years prior to the execution of the deed was properly excluded as immaterial and too remote to affect the issue of duress. Reek v. R., 184M532, 239NW599. See Dun. Dig. 2848.

Testimony to show tha t one defendant had said plain­tiff was crazy or foolish was hearsay as to the other, defendant, and irrelevant, under the pleadings, as to both defendants. Kallusch v. K., 185M3, 240NW108. See Dun. Dig. 3286, 3287.

I t was hot error to exclude an opinion of witness al­ready testified to by him. Supornick v. N., 190M19, 250 NW716. See Dun. Dig. 10317.

Plaintiff, in libel, could not testify as to effect of pub­lication on his wife and daughter caused by t rea tment accorded them, or their conduct and actions in his pres­ence or oral s ta tements to him detail ing remarks and conduct of others resul t ing in their humiliation. Thor-son v. A., 190M200, 251NW177. See Dun. Dig. 5555.

I t was not error to admit in evidence fragments of bone from plaintff's skull where there was controversy as to character of injury to her head. Johnston v. S., 190 M269, 251NW525. See Dun. Dig. 3258.

In action on life policy, court did not err in sustaining objection to question to defendant 's district manager "do you know whether or not the company would have issued the policy to Mr. D., if it had known tha t he had been a bootlegger," such manager having nothing to do

with approval of applications. Domico v. M., 191M215, 253NW538. See Dun. Dig. 3254.

Where offered test imony is competent and material , its reception is not discretionary with court; there being no objection raised as to proper foundation being laid. Taylor v. N., 192M415, 256NW674. See Dun. Dig. 9728.

Cost of manufacture or production of property is gen­erally held admissible as tending in some degree to establish value. Fryberger v. A., 194M443, 260NW625. See Dun. Dig. 2576a.

In action for death of pedestrian killed while leading horses upon shoulder of paved highway, witnesses who examined locus in quo morning of next day were prop­erly permitted to testify as to t racks of horses along shoulder and across the ditch about where accident occurred, and as to skid t racks of a car, it being sufficient t ha t such foundation as si tuat ion permits be laid. Ra ths v. S., 195M225, 262NW563. See Dun. Dig. 3313.

Court did not err in sustaining an objection to appel­lant 's inquiry as to plaintiff's occupation, for her a t to r ­ney had in open court admitted it to be what appellant desired to prove. Paulos v. K., 195M603, 2G3NW913. See Dun. Dig. 3230.

Negative test imony is competent and of probative value and weight to be given thereto is for jury, considering all circumstances surrounding witnesses a t time of acci­dent. Polchow v. C., 199M1, 270NW673. See Dun. Dig. 3238.

In tr ial of claim by daughter against estate of mother for services rendered after 1925, contents of let ter wri t ­ten by mother to daughter in 1918, request ing her to come home and help with farm work because sons had gone to war, were properly excluded as i rrelevant and of no probative value. Anderson's Esta te , 199M588, 273NW 89. See Dun. Dig. 7307.

Issue being as to cubic contents of dikes, engineers ' field notes recording center heights of dikes were prop­erly admitted as evidence, where there was test imony showing uniform slop or angle of repose of embankments so that measurement of height showed also base. Bar-nard-Curtiss Co. v. M., 274NW229. See Dun. Dig. 3229.

6. Admission*!. Oral or wri t ten admissions by claimant tha t she is

single and not married are admissible agains t her on question of common-law marr iage. Ghelin v. J. 186M405. 243NW443. See Dun. Dig. 5794(79).

Admissions made by an insured after he had t r ans - , ferred to plaintiff's all of his interest in fire insurance policies, covering certain property against loss by fire, are not admissible in evidence to establish defense tha t insured willfully set fire to property. True v. C , 187M 636, 246NW474. See Dun. Dig. 3417.

Statements of physicians furnished by beneficiary to insurer as par t of proof of death of insured are re­ceivable in evidence as admissions of beneficiary. Elness v. P., 190M169, 251NW183. See Dun. Dig. 3410.

Statements made by a physician in proof by husband of his disability, three months before his death, na ture of which wife did not know, were not admissible against her when she sued on policy as a beneficiary. Id.

A s ta tement made to plaintiff by a mere clerk or sales­man in store, immediately after an accident, as to posi­tion of a platform, did not bind store or establish any negligence on its part. Smith v. E., 190M294, 251NW265. See Dun. Dig. 3410.'

Plaintiff suing employee of ga rage who at t ime of accident was driving car of third person on his own pri­vate business held not estopped in garnishment to claim liability of liability insurers of such third par ty by al le- ' gat ions in main action that defendant was operating auto­mobile in business of garage. Barry v. S., 191M71, 253 NW14. See Dun. Dig. 3208.

Effect of an admission by one represent ing a corpora­tion depends upon whether individual has author i ty to speak for it. Peterson v. S., 192M315, 256NW308. See Dun. Dig. 3418.

Admissions, if material, are always admissible. Hork v. M., 193M366, 258NW576. See Dun. Dig. 3408.

While it is ordinarily improper for either court or counsel to read pleadings to jury, yet, even wi thout i ts introduction in evidence, an admission in a pleading may be read to jury in a rgument for adversary of pleader. Id. See Dun. Dig. 3424, 9783a.

Allegation in answer of an agreement between de­ceased and husband of claimant, under which part ies lived as one family on farm of deceased, cannot be con­strued into an admission of a contract between deceased and claimant to pay her for services rendered him as a. member of household. Empenger v. E., 194M219, 259NW 795. See Dun. Dig. 3424.

Bank suing co-owners of a farm as par tners on a note, purport ing to be signed by them as a partnership, was not thereafter estopped in a suit by a third par ty to claim t h a t there was no par tnership and tha t certain co-owner was alone liable on theory of having signed under an assumed name, first action being settled and there being no findings or judgment. Campbell v. S., 194M502. 261NW1. See Dun. Dig. 3218.

Pleadings of a par ty may be offered in evidence by his opponent to show admission. Id. See Dun. Dig. 3424.

Where complaint in another action was introduced to impeach witness, it was proper to permit a t torney who prepared complaint to testify t h a t witness had not made s ta tement alleged in complaint and tha t allegations therein were of a t torney 's own origination. Tri-State

1222

CH. 9 2 — W I T N E S S E S AND EVIDENCE §9905 Mi

Transfer Co. v. N., 198M537, 270NW684. See Dun. Dig. 3424.'

An admission of a town in its pleading does not pre­clude interveners from tha t town to prove tha t facts are to contrary in proceeding involving validity of organiza­tion and boundaries of a city. State v. City of Chisholm, 199M403, 273NW235. See Dun. Dig. 3424. . .

7. Declarations. Income tax re turns made by deceased In which he re ­

ported tha t he was single were admissible as declara­tions aga ins t interest in a proceeding by one agains t his es ta te as common-law wife. Ghelin v. J., 186M405, 243 NW443. See Dun. Dig. 5794(79).

Declarations made to hospital and in application for passport and in the execution of a void holographic will were not admissible as evidence of pedigree or as par t of res gestae in a controversy by one claiming a com­mon-law marr iage with decedent. Ghelin v. J., 186M405, 243NW443. See Dun. Dig. 5794(79).

Declarations in denial of marr iage made by other par ty to third persons not in presence of or acquiesced in by person claiming common-law marr iage are inadmissible. Ghelin v. X, 186M405, 243NW443.

One claiming common-law marr iage cannot introduce in- evidence her own declarations to third persons not made in the presence of or acquiesced in by other party. Ghelin v. J., 186M405, 243NW443. See Dun. Dig. 3287a, 5794(79).

In action under "double indemnity" provision of life policy, court erred in permit t ing physician to testify to s ta tement made by deceased relative to past occurrences result ing in injury. Strommen v. P., 187M381, 245NW632. See Dun. Dig. 3292.

In workmen's compensation case, explanation by de­ceased of cause of his limping was incompetent. Bliss v. S., 189M210, 248NW754. See Dun. Dig. 3300.

In workmen's compensation case, his tory given physi­cian called to t rea t deceased employee, insofar as it in­cluded recitals of past events, was inadmissible. Id. See Dun. Dig. 3301.

Trial court properly ruled out evidence of declarations of deceased grantor whose deed had been placed in escrow to effect t ha t contract under which it had been so placed had been abandoned and tha t he had resumed possession and control of premises. Merchants* & Farmers ' State Bank v. O., 189M528, 250NW366.

Exclusion from evidence of a self-serving let ter wr i t ­ten by plaintiff was proper. Pet tersen v. F., 194M265, 260NW225. See Dun. Dig. 3287a.

Where, in action for personal injuries caused by mov­ing a one-man street car on a curve so tha t plaintiff was s t ruck by swinging rear end of car while he was seek­ing passage thereon, a passenger on car stated t h a t she informed motorman-conductor of presence of plaintiff coming to car, it was error to exclude her following s ta tement tha t plaintiff must "have gone the other way"; night being dark and rainy, and she being in a position for observation superior to tha t of motorman. Mardorf v. D., 196M347, 265NW32. See Dun. Dig. 3237.

Court properly excluded a self-serving paragraph in a letter. Kolars v. D., 197M183, 266NW705. See Dun. Dig. 3305a. „

There was no error on accounting of guardian in ad­mission of evidence as to a s ta tement made by guardian, before his appointment, as to what fees he would charge, if appointed. Fredrick v. K., 197M524, 267NW473. See Dun. Dig. 3286.

Let ter from a railroad claim department to a claim agent containing self-serving declarations held inadmis­sible. Marino v. N., 199M369, 272NW267. See Dun. Dig. 3286, 3287a.

Evidence as to conversations re la t ing to a compromise or settlement, between parties to action and relat ing to one of issues to be litigated, is inadmissible. Schmitt v. E., 199M382, 272NW277. See Dun. Dig. 3425.

Statement of deceased tha t child would get wha t was coming to her was too ambiguous to support a finding tha t deceased intended tha t daughter should receive com­pensation for her services. Anderson's Estate , 199M588, 273NW89. See Dun. Dig. 7307.

Admissibility of extra-judicial confessions of third parties. 16MinnI_,awRev437.

Statements of facts agains t penal interests. 21Minn LawRevl81.

8. Collateral facts, occurrences, and t ransact ions . In an action for fraud, where the value of the assets

of a financial corporation a t a given time is in issue, its record books and history, both before and after the time in question, may be examined and received as bear­ing upon such value at the t ime of the transaction in­volved. Watson v. G., 183M233, 236NW213. See Dun. Dig. 3247.

Where agreed price of automobile was in dispute, and it was seller's word against buyer's, t r ial court had a large discretion in admit t ing testimony of collateral mat­ters tending to show which of the two conflicting stories is the more probable. Baltrusch v. B., 183M470, 236NW 924. See Dun. Dig. 3228(52).

Competent evidence tending to show defendant's guilt is admissible even though it proves his participation in some other offense. State v. Reilly, 184M266, 238NW492. See Dun. Dig. 2459(53).

In action against city for damages growing out of car going through rai l ing on bridge, held not error to ex­clude proof of other cars going on sidewalk on such

bridge. Tracey v. C, 185M380, 241NW390. See Dun. Dig. 3253, 7052.

In action to recover instal lment upon land contract wherein defendant counter-claimed and sought to enjoin termination of contract by s ta tu tory notice on ground tha t conveyance and contract constituted a mortgage,, court did not err in excluding verified complaint in ac­tion brought by defendant to enforce contract to convey other land made a t same time. Jeddeloh v. A., 188M404. 247NW512. See Dun. Dig. 6155..

Where there is conflict in test imony of witnesses rele­vant to issue, evidence of collateral facts having direct, tendency to show tha t s ta tements of witnesses on one side are more reasonable is admissible, but this rule should be applied with great caution. Patzwald v. P.,-188M557, 248NW43. See Dun. Dig. 3228(52).

In action to recover license fee from holder of gas franchise, evidence of practical construction of similar ordinance g ran t ing electricity franchise was admissible. City of South St. Paul v. N., 189M26, 248NW288. See Dun. Dig. 3405.

In action to recover for injuries received in a fall in defendant's salesroom, based on its alleged negligence in permit t ing waxed linoleum floor to become we t and sloppy, rendering it slippery and' dangerous to users thereof, it was competent and material to prove t h a t shortly after plaintiff slipped and fell thereon, another person slipped and almost fell a t substantial ly same place. Taylor v. N., 192M415. 256NW674. See Dun. Dig. 3253.

Where so-called admission agains t interest of deceased person is not in respect to specific issue litigated, but ra ther indirectly or upon a collateral matter , evidence going to contradict or explain same should be admitted. Empenger v. E., 194M219, 261NW185. See Dun. Dig. 3233.

On issue of fraud, court properly admitted t ransact ions between part ies tending to prove tha t one was t a k i n g undue advantage of other whenever he could. Chamber-lin v. T., 195M58, 261NW577. See Dun. Dig. 3252.

In action for personal injuries received when slipping on floor in place of business, court erred in refusing to permit testimony of one of plaintiff's witnesses to effect that a short t ime after plaintiff had fallen witness en­tered same room and slipped and nearly fell a t substan­tially same place. Taylor v. N., 196M22, 264NW139. See Dun. Dig. 3253.

In order to prove incompetency a t t ime of a par t icular transaction, it is proper to show a subsequent adjudica­tion of incompetency. Johnson v. H., 197M496, 267NW486. See Dun. Dig. 3438, 3440.

Evidence was properly admitted of other sales of stock with the same provision, for repurchase on demand, made with the knowledge and sanction of the president and officials of defendant. Thomsen v. U., 198M137, 269NW 109. See Dun. Dig. 3253.

Where an important issue in automobile case was whether defendant and his witness were intoxicated, it was not error to allow defendant to show tha t unfitting conduct of witness resulted from injuries in accident, as against contention tha t defendant had no r ight to br ing out fact tha t witness had been injured in accident. Tr i -State Transfer Co. v. N., 198M537, 270NW684. See Dun.' Dig. 3237a.

There can be no valid objection to defendant's bolster­ing his own case by making most of a mat ter par t ly de­veloped by plaintiffs. Id. See Dun. Dig. 9799. ,

8%. Mental operation, s ta te of condition. In libel case, it was competent for plaintiff to testify,

relative to his own mental suffering the cause and ex­tent thereof. Thorson v. A., 190M200, 251NW177. • See Dun. Dig. 5555.

I). Agency. While agency may be proved by the testimony of the

agent as a witness, evidence of the agent 's s ta tements made out of court are not admissible against his al­leged principals before establishing the agent 's author­ity. Farnum v. P., 182M338,. 234NW646. See Dun. Dig. 3410(36), 149(71).

One to whom another was introduced as vice-president of a corporation held entitled to testify as to his conver­sation to prove agency. National Radiator Corp. v. S., 182M342, 234NW648. See Dun. Dig. 149(77).

A prima facie case of agency is sufficient to authorize receiving in evidence a s ta tement of the agent. State v. Irish, 183M49, 235NW625. See Dun. Dig. 241.

10. Hearsay. Expressions of pain are admissible on, the issue of

physical disability, as aga ins t the objection of hearsay. Proechel v. U., (CCA8), 59F(2d)648. Cert, den., 287US658, 53SCR122. See Dun. Dig. 3292.

Testimony tha t deceased wife of decedent said tha t she had given plaintiff certain notes by having decedent husband endorse them over to plaintiff, held admissible as exception to hearsay rule. Quarfot v. S., 189M451, 249NW668. See Dun. Dig. 3291.

Repetition of signals between engineer and his fire­man, when approaching crossing, where collision oc­curred, was hearsay and properly excluded. O'Connor v. C, 190M277, 251NW674. See Dun. Dig. 3286.

Purpose of hearsay rule, and its only proper use, is to ' exclude what otherwise would be test imony untested by cross-examination and unvouched for as to t rus t ­worthiness by oath. Lepak v. D., 195M24, 261NW484. See Dun. Dig. 3286.

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§ 9 9 0 5 % CH. 9 2 — W I T N E S S E S AND E V I D E N C E

Making of an alleged oral contract being within issues and relevant, it was prejudicial error to exclude as hear­say otherwise competent testimony of terms of such contract. Id.

In contest between two groups claiming to be heir of escheated estate, testimony of one of petitioners as to what he had learned from his father respecting death of a near relative was properly received, re la t ing to a mat ter of family history. Gravunder 's Estate , 195M487, 2G3NW458. See Dun. Dig. 3295.

Foundation being properly laid, hospital records were admissible against objection tha t they were hearsay. Schmidt v. K., 19GM612, 265NW81G. See Dun. Dig. 3357.

Certificate of under taker was r ight ly excluded as of no probative force on issue tried—it being palpably hearsay of deputy coroner not a physician. Miller v. M., 198M497, 270NW559. See Dun. Dig. 3286.

Lost section and quar ter corners may be proven by reputation. Lenzmeier v. E., 199M10, 270NW677. See Dun. Dig. 8010.

Statements of facts against penal interests. 21Minn LawRevl81.

11. Res gestae. The s ta tement of an employee, a city salesman solicit­

ing orders, when in the course of his employment he entered the place of business of his employer near the close of his day's work, t ha t he had fallen on the s t reet as he came in, coupled with the s ta tement tha t he was going home, was properly held competent as res gestae. Johnston v. N., 183M309, 236NW466. See Dun. Dig. 3300.

Statement of one defendant is admissible against her, but not against a co-defendant. Dell v. M., 184M147, 238 NW1. See Dun. Dig. 3421(83).

A s ta tement of the plaintiff's client, the defendant Ada Marckel, to her father a few hours after it was claimed tha t a set t lement was made of two causes of action brought by her agains t her fa ther- in- law and co-defend­an t Amos Marckel, t ha t she was to receive $10,000 was not a par t of the res gestae and was not proof of a set t lement nor of the receipt of money. Dell v. M., 184M 147, 238NW1. See Dun. Dig. 3300.

Defendant's talk and conduct near commission of of­fense was admissible in prosecution for driving while drunk. State v. Reilly, 184M206, 238NW492. See Dun. Dig. 3300.

Testimony of conversation between deceased wife and witness wherein wife complained of her husband's dr ink­ing was admissible as par t of res gestae in action by hus­band for wrongful death of wife. Peterson v. P., 186 M583, 244NW68. See Dun. Dig. 3300.

Where one Joint adventurer sold out to another a let­ter wri t ten by one of them to bank act ing as escrow agent held admissible as res gestae. Mid-West Public Utilities v. D., 187M580, 246NW257. See Dun. Dig. 3300.

Statement of deceased employee to another employee tha t he had bumped his leg held admissible as part of res gestae. Bliss v. S., 248NW754. See Dun. Dig. 3300.

Testimony as to the . declaration of persons in posses­sion of property tending to characterize their posses­sion is admissible under res gestae doctrine. Pennig v. S.. 189M262, 249NW39. See Dun. Dig. 3306.

In a collision of passenger train of one defendant with freight t rain of other defendant, where crossing of their roads was governed by an automatic signal system, there was no abuse of judicial discretion in excluding testimony of a declaration made by engineer of Great Northern to third parties, four or five minutes after col­lision: said engineer having fully testified to wha t he said and did prior to collision. O'Connor v. C, 190M277, 251NW674. See Dun. Dig. 3301.

Court did not err in refusing to permit plaintiff to testify to a s ta tement he overheard his brother make more than half an hour after he set fire involved in ac­tion on fire policy. Zane v. H., 191M382, 254NW453. See Dun. Dig. 3301.

Plaintiff may not bolster up his case by testifying as to self-serving declarations made by him as a par t of res gestae. Fischer v. C, 193M73, 258NW4. See Dun. Dig. 3305a.

Testimony of witness tha t driver of car made s ta te ­ment, "I jus t came from Rochester where I have been on business for the company." short ly after and at place of accident, was a recital of past events, not connected with accident, and was not a part of res gestae or com­petent to prove agency. Wendell v. S., 194M368, 260NW 503. See Dun. Dig. 3301.

Time element is sometimes considered in determining whether declarations are res gestae or narrat ive, but it la not considered controlling. Jacobs v. V., 199M572, 273 NW245. See Dun. Dig. 3300.

As affecting admissibility of s ta tement of employee as a par t of the res gestae, consideration should be given to facts tha t a t time s ta tement was made there was an entire lack of motive for the employee to misrepresent, as "where injury appeared so insignificant tha t employee could not have given a thought to subsequent application for compensation. Id.

In workmen's compensation cases a liberal policy should be followed in admission of declarations as par t of res gestae in order tha t purpose of compensation act be carried out. Certain s ta tements made by deceased ap­proximately forty-five minutes after accident held prop­erly admitted as part of res gestae, id. See Dun. Dig. 3301.

11%- Articles or objects connected with occurrence or t ransact ion.

Where ear owner's son was in car, at time companion was killed, and disappeared same night, it was error not to receive such son's ha t in evidence as a circum­stance bearing upon who was driving car. Nicol v. G., 188M.69, 247NW8. See Dun. Dig. 3258.

I t was not error to receive in evidence a revolver found in path plaintiff's brother took when fleeing from scene of arson, in action on fire policy. Zane v. H., 191 M382, 254NW453. See Dun. Dig. 3258.

Use of a human skull on examination of an expert witness on question whether insured committed suicide or accidentally was shot was not improper. ' Backstrom v. N., 194M67, 259NW681. See Dun. Dig. 3258.

I t was not improper for defendant to mark s ta tements belonging to plaintiff as defendant's exhibits, and then offer all of it in evidence where offer was made only for purpose of ge t t ing into record exception to court rul ing that entire s ta tement was not admissible. Tri-State Transfer Co. v. N., 198M537, 270NW684. See Dun. Dig. 9721a.

12. Documentary evidence. The record books of banks and financial corporations

subject to the supervision of the superintendent of banks, when shown to be the regular record books of such a corporation, are admissible in evidence wi thout further proof of the correctness of the entries therein. Watson v. G., 183M233, 236NW213. See Dun. Dig. 3346.

A letter from the defendant to the plaintiff, wri t ten after suit was brought, was not erroneously received when the objection came from the defendant. Harr i s v. A., 183M292, 236NW458. See Dun. Dig. 3409.

Recital in lieu bond as to making of note and mort­gage was evidence of such fact in action on bond. Danielskl v. P., 186M24, 242NW342. See Dun. Dig. 1730a, 3204b.

In unlawful detainer against lessee, admission in evi­dence of unsigned pamphlet containing plaintiff's plan or organization, held error. Oakland Motor Car Co. v. K., 186M455, 243NW673. See Dun. Dig. 3363.

Records of life insura.nce company made and kept in usual course of business were admissible in evidence, and sufficiency of foundation therefor was for tr ial court. Schoonover v. P., 187M343, 245NW476. See Dun. Dig. 3346. 4741.

Court did not err in holding tha t there was sufficient foundation for introduction of a photograph of place of accident. Kouri v. O., 191M101, 253NAV98. See Dun. Dig. 3363.

Matter of sufficiency of foundation for introduction of photograph is largely for t r ial court. Id.

Testimony of life insurance agent t ha t he was familiar with instructions given him by insurer, was sufficient foundation for introduction in evidence of instruction that agents should not furnish claim blanks unless policy is in force. Kassmir v. P., 191M340. 254NW446. See Dun. Dig. 3244. 3251.

Unsigned wri t ing of deceased widow tha t daughter was to have all property after her death, held inadmis­sible as evidence of contractual obligation, there being nothing to indicate tha t wr i t ing was complete or that it would not contain much more if and when completed. Hanefeld v. F., 191M547, 254NW821. See Dun. Dig. 1734.

Record of affidavits filed pursuan t to §9648 was com­petent proof of taxes and insurance paid subsequent to foreclosure sale by holder of sheriff's certificate. Young v. P., 192M446, 256NW906. See Dun. Dig. 3355.

In a death action wherein it appeared mother of de­cedent was sole beneficiary, mortal i ty tables were ad­missible to show life expectancy of the mother, even if not admissible to show life expectancy of decedent, who was in ill health. Albrecht v. P., 192M557, 257NW377. See Dun. Dig. 3353.

Mortality tables were admissible in evidence in action for death though evidence indicated tha t decedent had a weak heart . Id.

I t was error to receive in evidence a copy of a police report made by officer called to the scene of accident. Duffey v. C, 193M358. 258NW744. See Dun. Dig. 3348.

Certain accommodation notes were so connected with testimony rela t ing to note involved in action by accom­modation maker for damages for breach of agreement to hold him harmless tha t evidence touching thereon was properly received. Cashman v. B., 195M195, 262NW216. See Dun. Dig. 3237.

Court was justified in holding tha t foundation for in­troduction of hospital records was properly laid by st ip­ulation and conduct. Schmidt v. R., 196M612. 265NW816. See Dun. Dig. 3357.

There is no parallel between hearsay reports of police officers and hospital charts kept by an a t tending nurse for information of phvsician in charge of patient. Drax-ten v. B., 197M511, 267NW498. See Dun. Dig. 3286.

There was no error in permit t ing injured plaintiff's doctor to refresh his recollection from hospital chart identified by him as one made during his t rea tment of her a t hospital. Id. See Dun. Dig. 10328.

Certificate of under taker was r ight ly excluded as of no probative force on issue tried—it being palpably hearsay of deputy coroner not a physician. Miller v. M., 198M497, 270NW559. See Dun. Dig. 3348.

Fals i ty of allegations in a reply may be established by affidavit. Berger v. F., 198M513, 270NW589. See Dun. Dig. 7664.

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CH. 9 2 — W I T N E S S E S AND EVIDENCE § 9 0 0 5 %

A pleading' in one action may be used as an admission against same par ty in another action. Tri-State Transfer Co. v. N„ 198M537, 270NW684. See Dun. Dig., 3424.

Admission of hospital chart in evidence was proper under doctrine enunciated in Schmidt v. Riemenschneider 156M612, 265NW81G. Taaje v. S., 199M113, 271NW109. See Dun. Dig. 3357.

12^4. Photographs. Where defendant was permitted to introduce four

Photographs of two street cars after they had been jacked up to permit release of occupants of automobile, it could not be said tha t it was error to admit one photo­graph introduced by plaintiff and described by witness as "the way It looked when they were jacked up." Luck v. M., 191M503, 254NW609. See Dun. Dig. 3233.

There was no error in receiving in evidence for pur­poses of illustration and comparison an X-ray of pelvis of a female two years older than injured plaintiff, X-rays of whose pelvis went in evidence without objecti'on. Draxten v. B., 197M511, 267NW498. See Dun. Dig. 3260, 9728.

12%. Best and secondary evidence. A natural izat ion certificate lost or destroyed by Are,

may be proved by oral testimony where there is no court record of its issuance and no better evidence available. Miller v. B., 190M352, 251NW682. See Dun. Dig. 3277, 3389.

Testimony of a witness of his own knowledge as to rental income of certain property was erroneously stricken as not best evidence, though he had books of account which were available. State v. Walso, 196M525, 265NW345. See Dun. Dig. 3263.

Admissibility of parol evidence to prove a divorce. 16 MlnnLawRev711.

12%. Demonstrations and experiments in court. There was no error in permit t ing a sheriff to demon­

s t ra te by lying on floor position and posture of deceased's body when found. Backstrom v. N., 194M67, 259NW681. See Dun. Dig. 3255.

Use of skeleton and hammock to demonstrate nature of injuries held not prejudicial. Timmerman v. M., 199M 376, 271NW697. See Dun. Dig. 9722.

13. Parol evidence affecting writings. "Where a contract uses the plirase to give a deed and

" take a mortage back," parol evidence is admissible in aid of construction in determining whose note was to be secured by such mortgage. Spielman v. A., 183M282, 236NW319. See Dun. Dig. 3397.

Parol evidence held inadmissible to vary the terms of a wri t ten contract. Nygaard v. M., 183M388, 237NW7. See Dun. Dig. 3368.

Parol evidence is inadmissible to show that a legisla­tive bill was passed a t a time other than tha t stated in the legislative journals . Op. Atty. Gen., May 1, 1931.

In replevin where defendants counterclaimed for dam­ages for misrepresentations of plaintiff and defendants' own agent, parol evidence was inadmissible to vary or destroy the wri t ten stipulation and release by which the cause of action against the agent was settled and joint tor t-feasors discharged. Martin v. S., 184M457, 239NW 219. See Dun. Dig. 3368.

An unconditional bond of a corporation, agreeing to pay to the holder therein named a stated sum of money on a fixed date, lawfully issued and sold for full value, cannot be varied by parol. Heider v. H., 186M494, 243NW 699. See Dun. Dig. 3368.

I t was not error to exclude an offer of proof to effect that, upon failure of a lessee to effect joint insurance, lessor took out insurance payable to himself only, pur­pose being to show a modification of lease and substi­tution of another tenant . Wilcox v. H., 186M500, 243NW 711. See Dun. Dig. 3375.

Oral testimony is inadmissible to show that part ies meant is an unambiguous wri t ten contract. Burnet t v. H., 187M7, 244NW254. See Dun. Dig. 3407.

Oral evidence was admissible to show t rue considera­tion for assignments of contract and notes recit ing consideration as "value received." Adams v. R., 187M209, 244NW810. See Dun. Dig. 3373.

Parol evidence is inadmissible to show tha t indorse­ment on negotiable instrument was intended to be "with­out recourse." Johnson Hardware Co. v. K., 188M109, 246NW663. See Dun. Dig. 1012, 3368.

Extr insic evidence is not admissible as bearing on in­tent of insurer where policy is unambiguous. Wendt v. W., 188M488, 247NW569. See Dun. Dig. 3368.

Parol evidence is inadmissible to show tha t a prom­issory note, which by its express terms is payable on demand, is not payable until happening of a condition subsequent. Fljozdal v. J., 188M612, 248NW215. See Dun. Dig. 3374n(92).

Assignment of rents to mortgagee reciting consider­ation of one dollar contained no contractual considera­t i o n and real consideration could be shown. Flower v. K., 189M461, 250NW43. See Dun. Dig. 3373.

Parol evidence is admissible to show fraud in induce­ment of a wri t ten contract. National Equipment Corp. v. V., 190M596, 252NW444. See Dun. Dig. 3376.

To be justified in set t ing aside a wri t ten contract and holding it abandoned or substi tuted by a subsequent parol contract a t variance with its wri t ten terms, evi­dence must be clear and convincing, a mere preponder­ance being insufficient. Dwyer v. I., 190M616, 252NW 837. See Dun. Dig. 1774, 1777.

Even if It be supposed that a signed wri t ing is but part ial integrat ion of a contract, a parol, contempo­raneous agreement is inoperative to vary or contradict the terms which have been reduced to writing. Me-Creight v. D., 191M489, 254NW623. See Dun. Dig. 3392.

Proof of promissory fraud, inducing a wri t ten con­tract, cannot be made by representations contradictory of the terms of the integration. Id. See Dun. Dig. 3376, 3827.

Oral agreement of real estate mortgagee to extend time of payment to certain date in consideration of mortgagor giving chattel mortgage on crops to secure payment of taxes was not void as an a t tempt to vary terms of wri t ten instrument, which instrument was within s ta tu te of frauds. Hawkins v. H„ 191M543, 254 NW809. See Dun. Dig. 8855.

Parol evidence rule prohibits proof of a contempora­neous parol agreement in contradiction of terms of writing. Crosby v. C, 192M98, 255NW853. See Dun. Dig. 3368.

Although the name of plaintiff's husband was signed to conditional sales contract by which plaintiff procured an automobile from dealer, parol evidence was admis­sible to show tha t she was real purchaser of car. Saun­ders v. C, 192M272, 25GNW142. See Dun. Dig. 3371.

I t being admitted tha t the conditional sales contract was blank as to price and terms when signed by the vendee, oral testimony was- admissible, as between the part ies to the contract, to prove that the price and terms thereafter inserted by the vendor were not those agreed to or authorized. Id. See Dun. Dig. 3370.

Cause of action being for fraud and deceit, part ies were not restricted by rule tha t parol evidence may not be received to vary or contradict wri t ten contracts. Nel­son v. M., 193M455, 258NW828. See Dun. Dig. 3376.

Intent of part ies to a wri t ten instrument must be gathered from words thereof after consideration of whole instrument, and evidence as to intent should not be resorted to unless there is some uncertainty or ambiguity ar is ing from words used. Towle v. F., 194M 520. 261NW5. See Dun. Dig. 3399(84).

In action on promissory note by payee, defendant could testify and defend on ground tha t it was orally agreed tha t diamond for which note was given could be re ­turned if not satisfactory to woman. Hendrickson v. B., 194M528. 2C1NW189. See Dun. Dig. 3377.

Parol evidence is admissible to show that an instru­ment was delivered to take effect and become operative only on happening of a certain contingent future event. Id.

A parol contemporaneous agreement is inoperative to vary or contradict terms which have been reduced to. wri t ing. Id.

On a claim against his father 's estate for services ren­dered,-it was not error to admit evidence of value of a farm deeded to son upon payment by son's wife of an amount much less than value of farm, upon issue of whether or not there was a promise to pay for such serv­ices in addition to value of farm over amount so paid. Delva's Estate , 195M192. 262NW209. See Dun. Dig. 3232.

Conversations prior to or at time deed was given in which father indicated his intentions in regard to claim­ant, were admissible. Id. See Dun. Dig. 3403. '

Evidence that a note was given by the son to the father long after the deed was given was admissible as show­ing a situation inconsistent with the claimed debt. Id. See Dun. Dig. 3232.

Printed "Rural Service Agreement" entered into be­tween farmer and power company was incomplete and did not prevent plaintiff from showing by oral evidence a collateral agreement as to price to be paid by defendant for transfer to it of service line and time when payment was to be made. Bjornstad v. N., 195M439, 263NW289. See Dun. Dig. 3392.

Rule forbids adding to instrument by parol where wr i t ing is silent, as well as varying it where It speaks. Taylor v. M., 195M448, 263NW537. See Dun. Dig. 3368.

Before evidence of oral agreement is received to sup­plement a wri t ten contract it must appear that a t least three conditions exist: (1) oral agreement sought to be proved must in form be a collateral one: (2) it must not contradict express or implied provisions of writ ten con­t ract ; and (3) it must be one tha t part ies would not or­dinarily be expected to embody in wri t ing and it must not be so clearly connected with principal transaction ,as to be par t and parcel of it. Id.

Question whether proper interpretation of contract, in l ight of surrounding circumstances and purposes of par­ties, admits parol evidence to prove a collateral oral agreement, is for court. Id.

A document acknowledging receipt of bank stock is construed to be contractual in character and not a mere receipt, and not subject, to parol proof of additional con­t rac t by defendants to purchase stock not mentioned therein. Id. See Dun. Dig. 3391.

Parol evidence held admissible with regard to pledging of stock to secure debt of a third person. Stewart v. B., 195M543, 263NW618. See Dun. Dig. 3385.

Parol evidence rule was not violated by resort to ex­trinsic' circumstances to show tha t apparent wife rather than real wife was beneficiary under a life insurance trust . Soper's Estate, 196M60, 264NAV427. See Dun. Dig. 3368.

Where a person signs a promissory note in lower left-hand corner thereof, and two makers sign in lower right-

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hand corner, below whose s ignatures there is a vacant line, and mortgage securing note recites tha t note is signed by two makers who signed in lower r ight -hand corner, there is an ambigui ty and parol evidence is ad­missible to show whether he signed as a maker. Union Cent. Life Ins. Co. v. F., 196M260, 264NW786. See Dun. Dig. 3406.

Parol evidence rule has no application where witness testified as of his own knowledge as to facts also set forth in books of account. State v. Walso, 196M525, 265 NW345. See Dun. Dig. 3368.

A mere oral promise or agreement to pay a promissory note, having a fixed due date, in instal lments before due, is invalid, and cannot be shown to vary terms of note for purpose of showing usury, where no usury has ac­tual ly been taken or received by lender. Blindman v. I., 197M93, 266NW455. See Dun. Dig. 3382.

Plaintiff is not in position to prove an error on ad­mission in evidence of conversations between par t ies a t time contract and deed were made, having opened up tha t subject himself. Priebe v. S., 197M453, 267NW376. See Dun. Dig. 3237, 3368.

From wri t ten documents and facts and circumstances shown to exist a t time of transaction, whereby one bank contracted with another bank, there appears sufficient ambiguity in wri t ten instruments to admit oral evidence on question of plaintiff's duty to exercise efforts and diligence to collect and secure bills receivable. State Bank of Monticello v. L,., 198M98, 268NW918. See Dun. Dig. 3406.

Where individual in business organizes a corporation to take it over, t ransferr ing all his assets, subject to his liabilities and obligations, corporation becomes obligated to fulfill wri t ten contract of individual whereby he em­ployed a superintendent for business for a term of years, and fact tha t corporation assumed employment contract may be proven by parol. McGahn v. C, 198M328, 269 NW830. See Dun. Dig. 3395.

Acceptance and recording of deed acted as waiver of any r ights t ha t might have existed by vir tue of claimed prior contract for the lat ter . Berger v. F., 198M513, 270 NW589. See Dun. Dig. 10019.

Where a deed absolute in form is alleged to have been given for purpose of securing a loan, court will look through form of the t ransact ion to determine its char­acter and will regard it merely as a mortgage if par­ties so" intended. Nitkey v. W., 199M334, 271NW873. See Dun. Dig. 6155.

Whether deed absolute is mor tgage will be ascer­tained from wri t ten memorials of t ransact ion and all a t tendant facts and circumstances, al though documents evidencing transaction make a pr ima facie case for wha t they purport to be. Id.

Parol testimony will be admitted to explain meaning of word other than t h a t meaning generally accepted only when proof shows a uniform use of word in par t icular business in a sense entirely different from its still genr erally prevail ing signification. Frankl in Co-Op. Cream­ery Ass'n. v. E., 273NW809. See Dun. Dig. 3368.

Parol evidence to contradict or vary a wri t ing— "Test of reasonable consequences." 18MinnLawRev570.

Parol evidence rule and warrant ies of goods sold. 19 MinnLawRev725.

14. Exper t and opinion test imony. Answer to hypothetical question propounded to a

Ehysician, held proper where the facts connecting the ypothesis with the case were later supplied. Proechel

v. U., (USCCA8), 59F(2d)648. Cert, den., 287US658, 53SCR 122. See Dun. Dig. 3337.

Whether application for life insurance policy was readable, held not mat te r for expert testimony. F i r s t Trust Co. v. IC, (USCCA8), 79F(2d) 48.

In action for damages for sale to plaintiff of cows infected with contagious abortion, test imony of farmers and dairymen, familiar with the disease and qualified to give an opinion, should have been received. Alford v. K., 183M158, 235NW903. See Dun. Dig. 3327(47), 3335 (58).

An expert accountant, after examination of books and records and with the books in evidence, may testify to and present in evidence summaries and computations made by him therefrom. The foundation for such evi­dence is within the discretion of the court. Watson v. G., 183M233, 236NW213. See Dun. Dig. 3329.

In malpractice case, questions to plaintiff's expert as to wha t the witness would do and as to wha t kind of a cast he would use in t r ea t ing the plaintiff, not based on any other foundation, should not be permitted to be answered. Schmit v. E„ 183M354, 236NW622. See Dun. Dig. 7494.

In malpractice case, court erred in permit t ing plain­tiff's witness to testify as to wha t stand or action cer­tain medical associations had taken in reference to the r ight of a physician to testify in a malpractice case. Schmit v. E., 183M354, 236NW622. See Dun. Dig. 7494.

Exper t witness in malpractice case should not have been permitted to testify as to degrees of negligence, to s ta te tha t certain facts, assumed to be t rue on plain­tiff's evidence, showed tha t plaintiff was highly negli­gent, very negligent in his t reatment . Schmit v. E., 183M354, 236NW622. See Dun. Dig. 7494.

In action for death in automobile collision, opinions of plaintiff's medical experts tha t injuries received in collision where primary cause of death were properly

admitted. Kieffer v. S., 184M205, 238NW331. See Dun. Dig. 3326, 3327.

Determination as to which of two successive employ­ers was liable for occupational blindness held to be de­termined from conflicting medical expert testimony. F a r ­ley v. N., 184M277, 238NW485. See Dun. Dig. 3326(36), 10398.

Whether a witness has qualified to give an opinion as to the value of housework is largely for the tr ial court 's discretion or judgment. Anderson's Es ta te , 184 M560, 239NW602. See Dun. Dig. 3313(76).

The record discloses a sufficient qualification of a wit ­ness to testify as to the marke t value of automobile. Quinn v. Z., 184M589, 239NW902. See Dun. Dig. 3335, 3336.

It was not error to sustain an objection to a question to a physician as to whether he found in examining plaintiff any symptoms of senility. Kallusch v. K., 185 M3, 240NW108. See Dun. Dig. 3326, 3328.

The opinions of expert witnesses a re admissible when­ever the subject of inquiry is such t h a t inexperienced persons are unlikely to prove capable of forming a cor­rect judgment upon it wi thout such assistance. Tracey v. C, 185M380, 241NW390. See Dun. Dig. 3325.

Where conditions a t place of automobile collision, be­cause of darkness, were such t h a t it was impossible for witness to describe same so as to enable ju ry to de­termine visibility of objects, it was not error to permit witness to express opinion as to whether he would have seen a certain object had it been there. Olson v. P., 185M571, 242NW283. See Dun. Dig. 3315.

Exper t may properly be asked to assume, fact, asserted' by opposing party, to be true, and then give opinion as to whether or not such fact would produce result contended for by such party. Milliren v. F., 185M614, 242NW290. See Dun. Dig. 3337.

Medical expert may give op.inion as to accidental- and resul tant injury causing premature delivery of child. Mil­liren v. F., 185M614, 242NW290. See Dun. Dig.-53327

Medical expert may properly give reasons for opinion' expressed as to cause of death. Milliren v. F., 185M614, 242NW290. See. Dun. Dig. 3327. ,. ;.-. '

Proper foundation held laid for admission of-opinion-of physician' as to cause of death. Milliren v. <F., 185M 614, 242NW546. See Dun. Dig. 3325. ' ' •» ' ••-,.-.-.

For want of sufficient foundation,-i t was error to -re­ceive in evidence test imony of thir teen year old boy as to speed of defendant 's car. Campbell v. S., , 186M293, 243NW142. , "See Dun. Dig. 3313. . -• In framing hypothetical questions to expert to give

an opinion as to reasonable value of a t torney 's services, question was proper if it embraced facts which evi­dence might justify jury in finding, even though it did not assume, all of test imony of plaintiff to be t rue. Lee v. W., 187M659, 246NW25. -See Dun. Dig. 3337:

I t is legit imate cross-examination to inquire of a wi t ­ness, giving opinion evidence as to damage, concerning his relations with l i t igant for whom he testifies, and amount of compensation to be paid -him as a witness. State v. Horman,. 188M252, 247NW4. See Dun. Dig. 3342.

Real es ta te .agen t held competent to testify as to values in eminent domain proceeding where in filling station owner sought damages occassioned by change of grade of highway by state, highway department . Apitz v. C, 189M205, 248NW733: .See Dun. Dig. 3069k-3073.

In libel case, plaintiff: could ' testify t h a t he believed newspaper publication affected ^hi's-^ family and friends. Thorson v. A., 190M200, 251NW177.'-; See Dun. Dig. 5555.

That a hypothetical question to an expert is based upon subjective symptoms goes to weight1 of his answer, not to its admissibility. Johnston v. S., 190M269, 251NW 525. See Dun. Dig. 3337.

Trial court 's determination of qualification of an ex­pert witness should'' stand, unless it clearly appears tha t knowledge and;: experience of witness is no aid to t r iers of fact. Palmer v. O., -191M204, 253NW543. See Dun. Dig. 3325.

A coroner and under taker held qualified to testify as to cause of death in action on accident policy. Id. See Dun. Dig. 3327, 3335.

Exper t test imony to the effect t ha t it was improper to t r ea t a delirious pat ient in a hospital by applying re­s t ra in ts and administering hypodermic injections of strychnine, a st imulant, and tha t such t rea tment was responsible for pat ient 's death, held to justify verdict. Brase v. W., 192M304, 256NW176. See Dun. Dig. 3332.

Plaintiff's expert witnesses were not disqualified from testifying as to cause of death because they had not ex­amined deceased's skull and brain, but had examined other vital organs. Id. See Dun. Dig. 3336.

Whether one who had not seen a farm for 12 years was qualified to testify to its value was for t r ia l court to determine. - Peterson v. S., 192M315, 256NW308. See Dun. Dig. 3335.

Refusal to s t r ike out test imony of physician tha t it. was possible tha t decedent had a fracture of the skull was without prejudice where skull f racture -was not in­cluded as one of facts upon -which physician based his opinion tha t accident aggrava ted weak hear t condition and contributed to cause death. Albrecht v. P., 192M557, 257NW377. See Dun. Dig. 422(94), 3337.

Question of qualification of expert witness Is one of fact for tr ial court whose action in this respect will not be reversed unless clearly contrary to evidence. Backstrom v. N., 194M67, 259NW681. See Dun. Dig. 3335.

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CH. 92—WITNESSES AND EVIDENCE §9905%

Opinion of expert based upon facts not in possession of hospital authori t ies is of no probative value upon issue of negligence of hospital in not t ak ing steps to prevent nervous pat ient from jumping out of window. Mesedahl v. S., 194M198, 259NW819. See Dun. Dig. 3334.

There was no error in reception of diagnosis of a t ­tending doctor, where it is not made to appear tha t he took into consideration any improper factor. Paulos v. K., 195M603, 263NW913. See Dun. Dig. 3339.

Wide discretion is given tr ial court in mat te r of re ­ceiving opinion testimony of experts. State v. St. Paul City Ry. Co., 196M45G, 265NW434. See Dun. Dig. 3325.

Pact that testimony of an expert goes to very issue before court as an opinion does not necessarily call for exclusion. Id. See Dun. Dig. 3326.

Trial court did not abuse its discretion in a s t reet car ra te controversy in permit t ing experts to testify as to the effect of requir ing s t reet rai lway to sell two car tokens for fifteen cents, instead of one token for ten cents and six tokens for forty-five cents, as against ob­jection that testimony was conjectural and speculative. Id. See Dun. Dig. 3332.

Where there are definite, related, and connected events leading up to a death, it cannot be said as a mat ter of law tha t medical testimony fixing such events as prox­imate and pr imary cause of death is speculative and con­jectural . Jors tad v. B., 196M568, 265NW814. See Dun. Dig. 3327.

Question is for jury where experts disagree. Id. See Dun. Dig. 3334.

Where facts are disputed, either par ty may put to an expert questions embodying disputed facts as his con­struction of evidence would show them to be. Id. See Dun. Dig. 3337.

One who had been personal physician of deceased in childhood was competent to testify as to cause of death. Id. See Dun. Dig. 3335.

Exper t medical testimony as to extent of injury, based in part on history of case as related by plaintiff, held inadmissible, where examination was made solely for purpose of qualifying physician as expert and not for purpose of t reatment . Fal t ico v. M., 198M88, 268NW857. See Dun. Dig. 3340.

Cross-examination as to s ta tements contained in med­ical works must be confined to legitimate impeachment of wha t witness has testified to. Hill v. R., 198M199, 269 NW397. See Dun. Dig. 3343.

Where there has not been sufficient sales to establish marke t price for land, court may permit introduction of opinions of men acquainted with property, their adapt­ability for use, and all other facts and circumstances having to do with value. State v. Oliver Iron Mining Co., 198M385, 270NW609. See Dun. Dig. 9210.

Reception of expert opinion evidence as to infectious character of tuberculosis held proper. Taaje v. S., 199M 113, 271NW109. See Dun. Dig. 3327.

Non expert witness may give an opinion as to mental capacity only after having first s tated facts and cir­cumstances upon which opinion is based. Bird v. J., 199 M252, 272NW168. See Dun. Dig. 3316.

Motion at close of evidence to s t r ike testimony of medical expert relative to results to be anticipated from injury to pubis bone on ground he did not testify that anticipated future disability was reasonably certain to be suffered held properly denied. Timmerman v. M., 199 M376, 271NW697. See Dun. Dig. 3332.

Admission of expert testimony is largely within dis­cretion o f tr ial court. Miller v. M., 199M497,"270NW559. See Dun. Dig. 3324.

Experience of under taker was such tha t he was prop­erly permitted to testify whether or not water bubbling from mouth of a body found submerged came from lungs; and remark of court in referring to fact of no water issuing from mouth should not resul t in a new tr ial be­cause of the addition of words "or lungs." Id. See Dun. Dig. 3327.

Medical expert may give hia opinion as to duration and permanency of personal injuries and na ture and extent of disability caused by such injuries. Piche v. H., 199M 526, 272NW591. See Dun. Dig. 3325, 3326, 3327(40).

A sufficient foundation is laid for an opinion of a medical expert as to cavise of plaintiff's injuries by show­ing tha t he was present in court and heard testimony of plaintiff and his witnesses tha t plaintiff was well and able-bodied before an automobile accident and injured and disabled immediately thereafter, and tha t expert had examined plaintiff and had taken X-rays of injuries; and such opinion is not inadmissible because it bears directly on an issue to be decided by jury. Id. See Dun. Dig. 3338.

Expert opinion evidence is admissible whenever sub­ject-mat ter of inquiry is such tha t inexperienced per­sons are unlikely to prove capable of forming a correct judgment upon it wi thout assistance of an expert. Wya t t v. W., 273NW600. See Dun. Dig. 3324.

Opinion evidence should not be accepted unless con­sistent with reason and common sense as applied to situation presented. Id. See Dun. Dig. 3324i(31).

Verdict based on testimony of two medical witnesses, contradicted by five medical witnesses, to effect tha t there was a fracture of lamina of second cervical ver te­b ra and a crushing fracture of odontoid process, could not be held unsupported by evidence, though injured per­

son walked around and went about his affairs for a day before calling upon a doctor. Id.

I t was not error to exclude expert testimony tha t it was a practical route to drive from 1900 Princeton ave­nue, St. Paul, to the St. Paul Hotel, through intersection of Colborne and West Seventh streets, where decedent met with fatal accident. Bronson v. N., 273NW681. See Dun. Dig. 3325.

Value of services of an a t torney may be shown by opinion of practicing at torney, including opinion Df claimant, but such opinion is not conclusive upon the jury. Daly v. D., 273NW814. See Dun. Dig. 701, 3247.

Blood-grouping tests and the law. 21MinnLawRev671. 15. Nonexpert opinions and conclusions.' I t is improper to permit witness to give his conclu­

sion tha t he was in a position to have seen a person in a certain location had he been there. Newton v. M., 186M439, 243NW684. See Dun. Dig. 3311.

In action for death of guest in automobile, driving companion of decedent having disappeared, one in­timately associated with decedent in life could not give his conclusion tha t decedent could not drive an au to ­mobile but may only s ta te facts and let jury draw Its own conclusion. Nicol v. G., 188M69, 247NW8. See Dun. Dig. 3311.

As respecting gift of notes endorsed to plaintiff, tes­timony of plaintiff tha t decedent handed notes to him and he handed them back because it was more conven­ient for decedent to take care of them was admissible as conclusion of witness. Quarfot v. S., 189M451, 249NW 668. See Dun. Dig. 3311.

A lay witness may s ta te facts within his own knowl­edge and observation as to another 's health, but may not express mere opinion. Frykl ind v. J., 190M356, 252 NW232. See Dun. Dig. 3311(63).

A farmer, acquainted with a farm In his neighborhood and having an opinion as to its value, may give his opinion without further foundation. Grimm v. G., 190M 474, 252NW231. See Dun. Dig. 3313, 3322, 3335.

Admission of testimony as to wha t witness understood was meaning of conversation and words used in negotia­tions, though conclusions of witness was without pre j ­udice where trial was before court without Jury and court heard what words used in claimed conversation, were. Hawkins v. H.. 191MB43, 254NW809. See Dun. Dig. 3311.

In action for conversion of automobile, plaintiff could testify as to value of automobile. Saunders v. C, 192M 272, 256NW142. See Dun. Dig. 3322.

Proffered testimony of insurance agent tha t he would not have wri t ten policies had he known of the existence of a contract to destroy building In 10 years held proper­ly excluded as conclusion of ul t imate fact. Romain v. T., 193M1, 258NW289. See Dun. Dig. 3311.

In action to recover damages from occupant of prem­ises abut t ing a sidewalk for fall on an icy driveway over sidewalk, opinion of witnesses tha t clumps or hummocks of ice, upon which plaintiff fell, had been caused by occu­pant in an a t tempt to clean driveway was properly ex­cluded within discretion of trial court. Abar v. R., 195M 597, 263NW917. See Dun. Dig. 3312.

There was no reversible error in refusing witnesses who have testified fully as to facts they observed to be recalled to testify as to conclusions they drew from such facts. Id.

To what extent a witness, not an expert, may express an opinion as to wha t caused condition which he tes t i ­fied to is for t r ial court. Id. See Dun. Dig. 3315.

Where a nonexpert witness was allowed to express an opinion on mental capacity without first detailing facts upon which his opinion was based, and record is such that t r ial court could have found for either party, ad­mission of opinion test imony was reversible error even though tr ial was before a court without a jury. John­son v. H., 197M496, 267NW486. See Dun. Dig. 3316.

16. Weight and sufficiency. Neither court nor jury may credit testimony positively

contradicted by physical facts. Ligget t & Myers Tob. Co. v. D.. (CCA8), 66F(2d)678.

Testimony in conflict with the physical facts and scien­tific principles is lacking in all probative force. Jacob-son v. C. (CCA8), 66F(2d)688.

Where evidence is equally consistent with two hypotheses, it tends to prove neither. P. F . Collier & Son v. H. (USCCA8), 72F(2d)625. See Dun. Dig. 3473.

Evidence held not to sustain a holding that defraud­ed vendees had received any valid extension of t ime of payment, or tha t they had accepted favors from defend­ants such as to prevent recovery. Osborn v. W., 183 M205, 236NW197. See Dun. Dig. 10100(55).

The evidence sustains the finding that the defendant's intestate promised to give the plaintiff his property upon his death in consideration of services rendered and to be rendered himself and his wife, and tha t services were rendered. Simonson v. M., 183M525, 237NW413. See Dun. Dig. 8789a(21).

Trier of fact cannot arbi t rar i ly disregard a witness ' testimony which is clear, positive and unimpeached, and not improbable or contradictory. Firs t Nat. Bank v. V., 187M96, 244NW416. See Dun. Dig. 10344a.

Testimony of a disinterested and unimpeached witness may not be disregarded. Allen v. P., 192M459, 257NW84. See Dun. Dig. 10344a.

Credibility and weight of test imony is peculiarly for the jury and in absence of substantial error, court will

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§9905- y2 CH. 9 2—WITNESSES AND EVIDENCE

not interfere. State v. Chick, 192M539, 257NW280. See Dun. Dig. 2477, 2490.

Where plaintiff's entire case for recovery of substan­tial damages for personal Injuries depended upon tes t i ­mony of medical expert who testified t h a t he t rea ted plaintiff for injuries supposed to have been sustained in spring of 1930, and thereaf ter complaint was amended to conform to proof showing t h a t accident occurred in November 1930, and medical witness was not recalled, there was no evidence to sustain recovery of damages awarded. Neuleib v. A., 193M248, 258NW309. See Dun. Dig. 2591.

A verdict of a jury upon specific questions of fact sub­mitted to them- in an equity action is as binding on court as a general verdict in a legal action, and it is subject to same rules as ' to set t ing aside for insufficiency of evidence. Ydstie's Estate , 195M501, 263NW447. See Dun. Dig. 415.

Plaintiff is not entitled to have his case submitted to jurv with but a scintilla of evidence to support his a l ­legations. Carney v. F., 196M1, 263NW901. See Dun. Dig. 9764.

Uncontradicted testimony of an unimpeached witness given with apparent fairness, not containing within it­self contradictions or inherent weakness or improbabili­t ies and not shown by other circumstances to be false, cannot be disregarded by jury or court. Cogin v. I., 196 M493, 2G5NW315. See Dun. Dig. 9764.

No credence need be given to testimony of a witness who knowingly testifies falsely as to a material fact. Segerstrom v. N„ 198M298, 269NW641. See Dun. Dig. 10345.

Credible uncontradicted and unimpeached evidence can­not be disregarded al though given by interested wit­nesses. Ewer v. C , 199M78, 271NW101. See Dun. Dig. 10344a.

Where defendant rented a hall on third floor of i ts building to company in order tha t la t te r might display its wares, and also furnished chairs for occasion, and a chair collapsed, doctrine of res ipsa loquitur is not ap­plicable, since chair was not under control of defendant. Szyca v. N.. 199M99, 271NW102. See Dun. Dig. 3431.

Rule that where admitted physical facts disprove ex­istence, of alleged fact upon which cause of action de­pends, there can be no recovery, does not apply where alleged fact disproved is not one upon which cause of action depends. Lacheck v. D., 199M519, 273NW366. See Dun. Dig. 3227b.

16%. Examinat ion of witnesses. In action for injuries received in collision of automo­

bile and two street cars, court did not err in permit t ing motorman after recess of court to testify on cross-ex­amination as to conversation wi th conductor, relat ive to his s tated desire to change his testimony as to one fact. Luck v. M., 191M503, 254NW609. See Dun. Dig. 9715.

In action by passenger for injuries in collision between car and truck, court did not err in sustaining objection to question to driver of car on cross-examination as to whether there was anyth ing to prevent him turn ing around on the s t reet and going back, there being no testimony of any intention to tu rn around a t t h a t place. Erickson v. K., 195M623, 262NW56. See Dun. Dig. 10317.'

Cross-examination of character witnesses as to hav­ing heard of par t icular acts of misconduct. 15MinnLaw Rev240.

17. Impeachment of witnesses. Evidence brought out on cross-examination of one

of defendant's witnesses, after plaintiff had rested, which was competent for the purpose of impeaching the wit­ness, but related to - a ma t t e r not in issue under the pleadings, and not presented as a par t of plaintiff's case, goes only to the credibility of such witness. Buro v. M„ 183M518, 237NW186. See Dun. Dig. 3237a.

An unverified complaint in a previous action by this plaintiff agains t this and another defendant, charg­ing them both with negligence, was admissible aga ins t plaintiff for the purpose of impeachment. Bakkensen v. M., 184M274, 238NW489. See Dun. Dig. 3424.

Where a t tempted impeaching evidence was contained in wr i t ing of witness, wr i t ing should have been pro­duced and shown to him. Milliren v. P., 186M115, 242 NW546. See Dun. Dig. 10351.

Impeaching test imony concerning s ta tement by wit­ness held improperly s tr icken out as lacking foundation. Newton v. M.. 186M439, 243NW684. See Dun. Dig. 10351.

Where plaintiff testified tha t damage to his automo­bile was $625, it was error to reject defendant's offer to prove on cross-examination tha t plaintiff had es­

timated and stated his damages to be $450. Flor v. B., 189M131, 248NW743. See Dun. Dig. 3342.

Where s tate 's main witness has by her answer taken prosecuting a t torney by surprise, there was no abuse of judicial discretion in permit t ing s ta te to cross-examine witness and impeach her as to t ru th of answer given. State v. Bauer, 189M280, 249NW40. See Dun. Dig. 10356 (8).

Answer of a witness to an impeaching question is not evidence of a substant ive fact and can be used only to discredit witness impeached. Christensen v. P., 189M548, 250NW363. See Dun. Dig. 10351g, n. 82.

Where an admitted accomplice in crime is called by s ta te as a witness and, on cross-examination, s ta tements contradict ing his test imony for s ta te are introduced, s ta te may introduce other s ta tements , made by witness a t about same time, consistent wi th his test imony on direct examination. .State v. Lynch, 192M534, 257NW278. See Dun. Dig. 10356.

In automobile accident case where police officer ad­mitted tha t plaintiff had left scene of accident before he arrived, which was contrary to his s ta tement on direct examination t h a t he saw people involved in t he collision, police report made by officer was not admissible to Im­peach his test imony by showing tha t report s t a t e d ' t h a t it was based upon wha t others had seen a t accident had told officer. Duffey v. C, 193M358, 258NW744. See Dun. Dig. 10351.

Evidence tha t plaintiff collected money on Insurance carried on life of decedent and tha t she received a t .his death personal and real property from his estate, a l ­though not to be considered in a r r iv ing a t amount of damages for his wrongful death, was admissible in ref­utation of testimony of plaintiff t ha t she had no money with which to redeem certain real property of her husband sold under foreclosure. Wr igh t v. E., 193M509, 259NW75. See Dun. Dig. 2570b, 7193, 7202.

In cross-examination of an impeaching witness, s t a te ­ments made by principal witness in connection wi th or in explanation of contradictory s ta tements elicited are ad­missible. Tri-State Transfer Co. v. N., 198M537, 270NW 684. See Dun. Dig. 10348.

Where complaint in another case was introduced to impeach witness, court did not err in permit t ing a t torney who drew complaint to testify as to wha t witness actual­ly told him ra ther than to limit his test imony to re la t ing what witness did not tell him. Id.

Third par t ies may be called to prove tha t purportedly contradictory s ta tement used to impeach witness was never made. Id. See Dun. Dig. 10351.

In impeachment, form or na tu re of contradictory asser­tion is immaterial, and it may be oral or writ ten. Id.

Any s ta tement contradictory to one made by a witness on the stand may be used for purpose of impeachment, but impeached witness may always explain away the In­consistent. Id.

Where witness admitted fact sought to be shown by certain testimony and exhibits, same were not admissible for purposes of impeachment. Jache's Esta te , 199M177, 271NW452. See Dun. Dig. 10348. •

18.' St r iking out evidence. Where plaintiff testified on direct examination tha t

insured would have been plowing all afternoon in order to finish; and on cross-examination, she testified tha t her husband had told her tha t he was going to finish plow­ing t h a t afternoon, denial of defendant 's motion to s t r ike answer given on direct examination as hearsay was not error. Pankonin v. F., 187M479, 246NW14. See Dun. Dig. 3290.

I t was error to deny a motion to s t r ike opinion evi­dence which cross-examination had shown to be based, insubstant ial degree, upon an element improper to be considered in determining damage ar is ing from estab­lishment of a highway. State v. Horman, 188M252, 247 NW4. See Dun. Dig. 9745.

Court did not err in denying defendant's motion to s t r ike out all evidence as to injury to plaintiff's kidney as a resul t of accident in question. Orth v. W., 190M193, 251NW127. See Dun. Dig. 2528.

10. Discovery. In automobile collision case, court properly excluded

notice served by plaintiffs upon defendant requir ing him to s ta te wha t information he had obtained at scene of accident. Dickinson v. L., 188M130, 246NW669. See Dun. Dig. 2735.

Where request of an autopsy in action on life policy was delayed until a few days before day set for trial, refusal to gran t same cannot be held an abuse of dis­cretion. Miller v. M., 198M497, 270NW559. See Dun. Dig. 4872(88).

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